Module 2
Kentucky Victim Assistance Academy
Lessons 2.4 – 2.6
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Learning Objectives 2.4:
From trial to sentencing
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Explain the trial by jury process
Explain the types of witnesses and what
they can testify to during trial
Explain the different types of verdicts that
can be determined by a jury or judge
Explain the penalty phase purpose and
process
Explain the sentencing process
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Identify the purpose of the pre-sentence
investigation, who conducts it and who has
access to the information
Identify the purpose of the victim impact
statement, the content, who can make it and
how it can be presented to the court.
Understand the difference between probation
and shock probation and the process to
receive both.
Define restitution.
DRAFT
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Trial by Jury Process


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Selection of Jurors
Prosecutors Opening
Statement
Defendant’s Opening
Statement

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◦ May reserve until later in trial

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Presentation of Evidence by
the Prosecution
Prosecution Rests Its Case
Defense opening statement
if reserved

Defense May Introduce
Evidence
Possible Rebuttal by
Prosecutor
Preparation of Jury
Instructions
Closing Arguments
◦ Defense
◦ Prosecution

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Jury Deliberation
Verdict
Sentencing Phase
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Witnesses
Qualifications of
Witness:


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Competency
KRE 601
Oath or Affirmation
required KRE 603
Permissible Types of
Testimony:
 Lay witnesses vs.
Expert witnesses KRE
701, KRE 702

Hearsay
KRE 801-804
Personal knowledge
required KRE 602
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Verdict

Requirements:
◦ Unanimous (RCr 9.82)
◦ Returned in open court (RCr 9.82)

Types (KRS 504.120, 532.055)
◦ Guilty
◦ Not guilty
◦ Not guilty by reason of insanity at the time of the
offense
◦ Guilty but mentally ill at the time of the offense
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Activity: Mock Trial
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Penalty Phase

Sentencing hearing: KRS 532.055
◦ Prosecution presents evidence relevant to
sentencing
◦ Defense may introduce mitigation evidence
◦ Jury determines punishment
◦ Jury determines concurrent or consecutive
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Pre-Sentence Investigation

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Must be ordered by Judge prior to sentencing
Prosecutor and defense attorney must get
report
Defense counsel has right to make
statements on defendant’s behalf and present
mitigating information
Judge must examine and consider report
before sentencing
RCr 11.02, KRS 532.050
DRAFT
KVAA
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Victim Impact Statement

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Victim’s Right to VIS
Statement goes to officer
responsible for preparing
PSI report
Included in PSI report
Considered by judge
prior to
sentencing/release
Some Judges allow oral
victim impact statements
May contain but not limited
to:
 Nature and extent of
harm
 Need for restitution
 Whether victim has
applied for compensation
for financial loss
 Recommendation for an
appropriate sentence
KRS 421.520
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Imposition of Sentence

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Sentence must be within range provided by law KRS
532.055
Judge may reduce sentence recommended by Jury KRS
532.070
Judge must consider probation, probation with an
alternative sentencing plan or conditional discharge
unless it is prohibited KRS 532.010, 533.020, RCr 11.02
Judge must consider PSI and VIS
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Entry of Judgment

By Judge whether guilty or not guilty
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If guilty includes
◦
◦
◦
◦
◦
Plea
Verdict/findings
Whether entitled to bail/amount
Day of execution of a death sentence
Concurrent/consecutive sentences
RCr 11.04
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Probation
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Imposed by judge at sentencing.
All must be considered for unless prohibited by
other laws.
Restitution shall be ordered if victim suffered
monetary damage
Restitution has priority over restitution to
government agencies
Shock probation KRS 439.265, 439.267
◦ Motion must be made within 30 to 180 days after
incarceration
◦ Violent offenders and sex offenders not eligible
KRS 533.010 et. seq., 439.265, 439.267
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Restitution
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Shall be ordered
Not subject to suspension or non-imposition
If pre-trial diversion, probation, shock
probation, or conditional discharge is
granted, restitution shall be a part of the
sentence/agreement
If incarcerate and paroled, restitution shall be
a condition of the parole
KRS 532.032
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 Questions?
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15
Learning Objectives 2.5:
Appeals and Post-conviction process


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Identify who can appeal the verdict of the
court
Explain the appellate court process
Identify other possible post conviction
proceedings
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Who can appeal?
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Person convicted of a crime
Argument – trial proceedings did not comply
with the law (not guilt or innocence)
Appellate (higher) court reviews claimed legal
error(s)based upon the record made at trial
Court does not review new or additional
testimony or evidence
Appellate court determines:
◦ If there was sufficient evidence or
◦ If trial was conducted properly
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Overview

Kentucky criminal trial process in 10 EASY
steps
Discretionary
Review
District Court
Cert
petition
Circuit
Court
Direct Appeal
11.4
2
60.02
WRIT
HABEAS
CORPUS
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Kentucky Appellate Courts

Circuit Court

Kentucky Court of Appeals

Kentucky Supreme Court
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The Players

Office of the Attorney General
◦ To appear before the appellate courts on felony
appeals in state courts
◦ About 650—750 briefs a year (25 attorneys)
◦ Other motions, hearings, filings as appropriate

Department of Public Advocacy
◦ Handles appeals after trial is over (separate from
DPA trial group)
◦ Very rarely private counsel
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Process
1) Notice of Appeal is filed with trial court
2) Record is prepared and made available to Appellant’s
attorney & for Appellee.
3) Record is made available to Appellate’s Attorney for
Appellee.
◦ Appellant’s Attorney reviews record, writes and files the “Brief
for Appellant”
4) Appellant may file a reply brief
Note: Specific time frame for each step but extensions are
frequently requested and granted
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Process (cont.)
5. Case goes to the court for review of
written arguments
6. After review the court will either
◦ Order oral argument
◦ Order no oral argument
If argument is granted
◦ counsel will “argue” (present the case) to the
court - 15 minutes per side
◦ Judges will ask questions
No testimony is given / case decided “on
the record”
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Opinions
•
•
•
Court can take up to a year to issue an opinion.
Judgment is final after 30 days.
Possible results:
• Affirm
• Reverse
• Remand (In part)
•
Does not have to be unanimous
• Majority
• Dissenting
• Plurality
•
Losing party may file a Petition for Rehearing or
motion for Discretionary Review.
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Opinions
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Opinions from the Supreme Court become
final on the 21st day after the date of its
rendition unless a petition for rehearing has
been timely filed.
Opinions from the Court of Appeals become
final on the 31st day after the date of its
rendition unless a petition for rehearing or
motion for discretionary review has been
filed.
CR 76.30(2).
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DIRECT APPEAL

John Doe v. Commonwealth

Appellant v. Appellee

Matter of right appeal

Right to counsel

Less than 20 years to Kentucky Court of Appeals

Greater than 20 years to Kentucky Supreme Court
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Frequency of Issue on Appeal
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Evidentiary Ruling (43.0%)
Sufficiency of the Evidence
(35.1%)
Jury Instructions (29.5%)
Sentence/Sentencing
Hearing (24.5%)
Suppression of
Evidence/Statements
(14.5%)
Prosecutorial Misconduct
(12.7%)
Judicial Intrusion or
Management (9.7%)
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Jury Selection or
Deliberation (7.9%)
Suppression of
Identification/Line-up
(6.2%)
Lesser Included
Offenses/Merger (3.5%)
Speedy Trial (3.3%)
Statutory Interpretation
(1.2%)
Constitutionality of Statute
(1.0%)
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REHEARING
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John Doe, Petitioner v. Commonwealth of
Kentucky, Respondent
Opinion is rendered
Petition for rehearing is sought by the losing
party in the appeal
Petition goes to the court that issued the
opinion
NOT a matter of right; must petition
Right to appointed counsel
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DISCRETIONARY REVIEW
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John Doe, Petitioner v. Commonwealth of
Kentucky, Respondent
Opinion is rendered
Petition for discretionary review is sought by
the losing party in the appeal
Petition is filed in a higher court than the one
issuing the opinion.
NOT a matter of right; must petition
Right to appointed counsel
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PETITION FOR CERTIORARI TO UNITED
STATES SUPREME COURT
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John Doe v. Kentucky
Discretionary review
Petition is either granted or denied (“Cert
was denied”)
VERY VERY FEW are granted
Briefing, oral argument, opinion issued
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POST-CONVICTION pursuant to RCr
11.42
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John Doe v. Commonwealth
Alleges constitutionally ineffective assistance
of defense counsel
Movant must show both that
◦ (1) performance was deficient
◦ (2) but for the deficient performance,
the verdict would have been different
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POST-CONVICTION pursuant to RCr
11.42
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Proceedings in front of the same judge that
presided over the trial
Must raise issues that were not and could
not have been raised on direct appeal
Right to appointed counsel
No right to a hearing, but if hearing is
denied, may appeal denial
If motion is denied, may appeal denial
Commonwealth is now in the position of
defending the actions of the defense
attorney!
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APPEAL FROM RCr 11.42
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Denial of relief or denial of hearing may be
appealed to next highest court
Eg., John Doe might appeal from the
affirmance of the denial of his 11.42 motion!
Briefing, oral arguments, opinion issued
Petitions for rehearing and discretionary
review are possible
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POST-CONVICTION pursuant to CR
60.02
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John Doe v. Commonwealth
Seeks to set aside judgment of trial court
due to:
◦
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◦
◦
Mistake
Inadvertence
Surprise
Excusable neglect
Newly discovered evidence
Perjury
Fraud
Void judgment
Any other reason that is extraordinary in nature
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POST-CONVICTION pursuant to CR
60.02
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Time limit of one year for most bases for
motion
Otherwise, must be within a “reasonable time”
Only those matters that WERE NOT or COULD
NOT HAVE BEEN raised on appeal or in RCr
11.42
May only be used to attack a sentence the
defendant is currently serving
NO RIGHT to appointed counsel
NO RIGHT to a hearing, but denial of hearing is
appealable
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POST-CONVICTION pursuant to CR
60.02
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
Appeal from denial of CR 60.02 hearing or
denial of motion to Kentucky Court of
Appeals
DR from affirmance of denial of CR 60.02 to
Kentucky Supreme Court
Briefing, arguments, opinion issued
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ORIGINAL ACTIONS
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John Doe, Petitioner vs. Circuit Judge, Nominal
Party and Commonwealth of Kentucky, Real
Party in Interest
Unlike appeals and 11.42, 60.02, this action
ORIGINATES in the appeals court
May arise at any point in a criminal case
NOT an appeal or post-conviction remedy
Petition for Writ of Prohibition (tell the judge
NOT to do X) or
Petition for Writ of Mandamus (Tell the judge he
MUST do X)
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ORIGINAL ACTIONS
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Seeks immediate action by the appellate court
to intervene in a pending case
“Take the judge up on a writ”
Alleges that (1) immediate and irreparable
harm will occur and (2) that harm cannot be
corrected on appeal
Briefing and oral argument
Opinion granting or denying the writ
Petition for rehearing/ discretionary review
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The Federal Court System
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United States District Court (in Kentucky, we
have the Eastern District and the Western
District)
United States Court of Appeals (Circuit Court;
we are in the Sixth Circuit)
United States Supreme Court
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PETITION FOR WRIT OF HABEAS CORPUS
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Filed in United States District Court in the
district where the prisoner is held
John Doe vs. Warden
Civil proceeding in Federal Court
Must allege violations of US Constitution
Briefing and hearings before a federal judge
No right to a hearing
All state appeal and post-conviction
remedies must be “exhausted”
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PETITION FOR WRIT OF HABEAS CORPUS
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Petition for Writ of Habeas Corpus granted or
denied
Appeal from denial of writ or from denial of
hearing
Appeal to United States Court of Appeals for
the Sixth Circuit
Briefing and oral arguments by both parties
Opinion affirming, reversing, remanding
Petition for re-hearing en banc
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10 Reasons
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10. Changes in Law
9. Public Opinion
8. Media Coverage
7. Victim
Notification
6. Victim Advocacy
5. Attorney
Turnover




4. Victim
Involvement in the
Case
3. The Lack of
Finality
2. The Guilty Plea
1. The Timetable.
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A Case Study: 1983
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(10) If a defendant seeks appellate review of a
conviction and the Commonwealth is represented
by the Attorney General, the Attorney General shall
make a reasonable effort to notify victims promptly
of the appeal, the status of the case, and the
decision of the appellate court.
Effective: July 15, 2008
KRS. 421.500
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Victim Notification Provided By The
Office Of The Attorney General

Notice of appeal when OAG receives the case
Will provide briefs
Notice of oral arguments
Notice of opinion

Appellate Brochure - Printable for distribution to victims



http://ag.ky.gov/criminal/appeals/Documents/criminalappealsbrochure.pdf
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Victim Assistance Provided by the Office of
the Attorney General
Liaison
between appellate attorney and victim
throughout the appellate process
Court
Accompaniment
Arrange
for meeting with Attorney for the
Commonwealth after the argument
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Online Resources
•
COURTS.KY.GOV
•
Court Of Justice Website: Provides a link to
Chase School of Law webpage which supplies
Kentucky appellate court briefs
•
Kentucky Supreme Court also has ‘Live Stream’
of oral arguments
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 Questions?
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Learning Objectives 2.6:
Juvenile Court System



Identify the criminal jurisdiction of the court
Identify the participants
Identify the rights of victims
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Juvenile Court System - Jurisdiction


Cases where offender is under 18
Philosophy
◦ Guided by “the best interest of the child”

Types of offenders
◦ Status
◦ Public
◦ Youthful
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Juvenile Court

Participants

Victim presence and rights
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Juvenile Court Process
Arraignment
Detention
Hearing
Informal
Adjustment
Pretrial
Conference
DRAFT
Adjudicatory
Hearing
KVAA
Dispositional
Hearing
51
Youthful Offender Hearing

To determine probable cause
◦ that the transferred offense was committed and
◦ whether transfer to Circuit Court is appropriate

Factors to Consider

Disposition
◦ If probated as a youthful offender
◦ If sentenced as a youthful offender
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Questions ?
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This Instructor Manual was produced by the Justice
and Public Safety Cabinet and Western Kentucky
University under 2011VFGXK004, awarded by the
Office for Victims of Crime, Office of Justice
Programs, U.S. Department of Justice. The
opinions, findings, and conclusions or
recommendations expressed in this Instructor
Manual are those of the contributors and do not
necessarily represent the official position or
policies of the U.S. Department of Justice.
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