The United States and Kentucky Constitutions protect you when you are being investigated by the police or after you have been arrested. To protect yourself and those that you love, it's important that you know your rights. Click on the stages of a criminal case below to learn what rights you have, and what you can do to help yourself during a criminal investigation or prosecution.
STOP AND ARREST (MISDEMEANOR OR FELONIES)
YOU ARE STOPPED BY THE POLICE ON THE STREET
do not have to answer any questions. You can say, "I do not want to
talk to you" and walk away calmly. Do not become angry or aggressive
with the police, do not run away and do not ignore their instructions to
stop. If you do not feel comfortable simply walking away, you can ask
if you are free to go. If the answer is yes, you can just walk away. If
the officer says you are not under arrest, but you are not free to go,
this is called being "detained." Being detained is not the same as being
arrested. However, the police can arrest you later in the same
The only information that you must give the police is
your name. You are not required to answer any other questions by the
police. Be sure to speak with a lawyer before answering any questions
asked by the police.
The police can pat down the outside of your
clothing if they have a "reasonable suspicion" that you may be armed or
dangerous. If they search you more than a pat down, calmly and clearly
tell them that you do not consent to the search. If the police continue
to search you, do not fight or resist them. Be sure to tell your public
defender that this happened, if you are charged. Be sure to later
collect the names and contact information for people who witnessed the
search of your person.
YOU ARE STOPPED BY THE POLICE IN A VEHICLE
your hands where the police can see them. You must show your driver's
license, registration, and proof of insurance if you are asked for those
documents. The police officer can ask you to step out of your car, and
they may separate passengers and drivers from each other to question
them and compare their answers. Remember, you do not have to answer any
of their questions.
You do not have to give the police permission
to search your car. If the police ask to search your car and you do not
wish for them to do so, stay calm and polite, and tell them "no." There
are certain limited circumstances where the police can search your car
without permission. These limited circumstances include: when they have a
warrant or when there is "probable cause" to believe that criminal
activity is taking place, the car was involved in a crime, or the
police believe there is evidence of a crime in your car. If the police
begin to search your car and you do not wish for them to do so, repeat
calmly and politely that you do not wish for them to search your car. Do
not attempt to stop the officer verbally or physically. This could
result in criminal charges.
Be sure to tell your public defender
if your car was searched without your permission. They have the ability
to look into the reasons why the police officer searched your car, and
determine if the search was lawful. If there was unlawful conduct, your
lawyer can file a motion with the Court asking that the results of the
search be suppressed.
THE POLICE CONTACT YOU BY PHONE
do not have to speak to the police. You do not have to return their
call, continue with a conversation, or go down to the police station to
speak with them further. If the police call or approach you for an
interview and you do not wish to speak with them, politely tell them
that you do not wish to speak with them. Do not answer any of their
questions. If you are not comfortable simply saying "no," tell the
police that you wish to speak with your lawyer. If the police officer
provides their name, write it down as soon as possible.
to tell your lawyer that the police are attempting to contact you. If
you do not have a lawyer, call the public defender's office that serves
your county. You can search for your local public defender office HERE.
will not make you look guilty if you refuse to speak to the police. It
is your constitutional right to not speak with the police.
THE POLICE PLACED YOU UNDER ARREST
officer must advise you of your constitutional right to remain silent,
to an attorney, and to have an attorney appointed if you cannot afford
one. You should exercise all of these rights, even if the officer does
not tell you about them. Do not tell the police anything except for your
name. Anything else that you say can and will be used against you. If
the police continue to ask you questions - do not answer them. Repeat
that you want to speak with a lawyer. Repeat this as many times as
Immediately ask for a lawyer. If you cannot afford a
lawyer, ask the police for the number for the local public defenders
office. If they will not provide the phone number, request access to a
phone book and look for the Department of Public Advocacy. If you cannot
immediately reach the public defender's office, calmly tell the
detective that you will not speak with them until you first speak with
your public defender.
Kentucky does not have a statutorily
required time limit on when you will be arraigned, but you will be
arraigned at the next arraignment docket in your county. In many
counties, your arraignment will take place by video-feed from the jail
to the courthouse. Your family members can go to the courthouse and
watch the court date. This can sometimes be as long as one week from the
time of your arrest.
A judge must set your bond within 24-hours.
If you have the ability to post bond, it is in your best interest to be
out of custody as soon as possible. If you cannot post bond, hire an
attorney or request a public defender attorney at your arraignment.
IF YOU WERE MISTREATED BY THE POLICE
not fight back. Do not yell or scream at the officer. Write down the
officer's name, badge number, and any other identifying information. You
have a right to ask the officer for this information, but do so in a
polite and calm manner. Try to find witnesses who saw the mistreatment
and write down their names and phone numbers. If you are injured,
immediately seek medical attention and request a copy of the records.
Take pictures of any injuries to your person or your property. Call your
lawyer as soon as possible.
If you are arrested ask the jail
staff to take photographs of your injuries. Immediately contact your
lawyer after your arrest. If you have been injured, tell your lawyer
that you have been injured so they can come to the jail and take
photographs before your injuries heal. It is important to take these
photographs as early as possible. If the jail staff took your picture,
be sure to tell your lawyer so they can request a copy of those photos.
BOND AND ARRAIGNMENT (MISDEMEANOR OR FELONY)
=Criminal cases are divided into three classes: 1) violations and 2)
misdemeanors; and 3) felonies. Violations put you at risk for a fine.
Misdemeanors are low-level offenses that typically result in up to a
$500 fine and/or up to 1 year in custody at a local jail. Felonies are
offenses that carry fines in excess of $500 and carry prison time over
1 year. If you are arrested on a misdemeanor or a felony, you are
entitled to a bond. Bond comes in many forms, and may require the
posting of money, property or acquiring a signature of a person who will
guarantee to the Court that they will make sure you follow all the
rules of bond and return for all court dates. A bond is set by the
If you are detained, you must be interviewed by Pretrial Services
within 24-hours. The Pretrial Services Officer will then give
information from that interview to the Judge so the Judge can set your
bond. It is very important that you meet with Pretrial Services. If you
do not, then the Judge will not set a bond. If a bond has been set,
your bond can be posted at your local county courthouse or the local
jail (in most counties).
You are entitled to an arraignment in front of the Judge. In many
counties this will take place over a video feed from the jail to the
courthouse. Your friends and family can go to the courthouse and watch
this proceeding. At this time, you will be able to make a request for a
reduced bond. Information that is helpful to your lawyer: how much you
can pay; whether any family member can help post bond and their contact
information; if you or any family member owns property that can be used
to post bond; if you have employment that will be impacted by
incarceration; your family obligations; medical treatment that cannot be
received at the jail; a history of mental health treatment or need for
mental health treatment; or any other factor that makes your continued
incarceration a burden on you or your family.
After you are arraigned in District Court, the Judge will set your
case for a Pretrial Conference for misdemeanors or a Preliminary Hearing
If you are charged with a felony, you will have a second
arraignment in Circuit Court. This arraignment will take place after you
are done with district court, and after your case has been presented to
the Grand Jury. If the Grand Jury issues an indictment, you will be
brought before the Circuit Court Judge. Prior to your arraignment, the
Circuit Court judge will review your bond. The bond may go up, or down.
If you are out of custody, this may mean that you will be placed back in
custody on a higher bond. At your arraignment, your lawyer can move the
court to reduce your bond.
PRETRIAL CONFERENCE (MISDEMEANOR OR FELONY)
Be sure to meet with your attorney prior to your
pretrial conference date so you can discuss your case, including any
discovery items that have been received or any offers that have been
made. If you do not meet with your attorney prior to your pretrial
conference, it will be more difficult for your case to move forward on
the pretrial conference date.
Discovery is the information that the police and prosecutor have
gathered in a case which they say proves the guilt of a charged person.
This will include items such as: police reports, signed statements,
recorded statements, photographs, and expert reports. Your attorney will
request your discovery by filing a "Motion for Discovery." Once the
discovery is received, it can be referred to simply as your "discovery."
A motion is a written or oral request that the court to do something,
or another party to do something. An example of a common motion is a
motion for bond reduction. In this example, the defense is asking the
Court to lower a bond amount. If the motion is granted, the bond will be
reduced. Another example is a motion for discovery. Here, the defense
is asking the court to order the prosecutor to turn over discovery
materials. Once the order is signed, the prosecutor is then required to
turn over the discovery items to the defense.
- Bond Violation:
When a person is released from custody on bond, they are often put on
conditions of their release. Common conditions include: no new offenses,
drug screens, checking in with pretrial services or attend drug/alcohol
treatment. If a person who is released on a bond does not follow their
conditions, the prosecutor will allege that the person has violated
their bond and will ask for the bond to be revoked. After a hearing, if
the prosecutor convinces the judge that there has been a bond violation,
the judge will typically increase the bond amount.
- Plea Offer:
A plea offer is an offer made by the prosecutor in exchange for a
guilty plea. The charged person will agree to enter a guilty plea and
waive their constitutional right to a jury trial. In exchange, the
prosecutor will offer the person a sentence that they are willing to
accept. You never have to accept a plea offer. However, your trial
attorney is required to negotiate on your behalf, even if you do not
want to accept a plea offer.
PRELIMINARY HEARING (FELONY IN DISTRICT COURT)
If you are charged with a felony, your case will
likely start in the district court. Following your arraignment in
district court, your case will be set for a Preliminary Hearing. A
preliminary hearing is also sometimes called a "Probable Cause Hearing."
At your preliminary hearing, the Court will hear testimony from
witnesses, usually the arresting officer, and determine if there is
probable cause that you have violated the law they're accusing you of
violating. Probable cause is a much lower standard than "beyond a
reasonable doubt," which is the standard at a trial.
Speak to your lawyer before your preliminary hearing. Be sure to go
over the facts of your case and any witnesses to the alleged offense.
Make sure that your lawyer has your contact information such as phone
number, backup phone number and address. If a public defender has been
appointed to your case, and do not know the name of your public
defender, call the local office and ask. You can find your local office here
When you are in court, be sure to tell your lawyer everything
before the hearing starts. If you speak to your attorney during the
hearing, it will be hard for them to hear and they may miss something.
If something comes up during the hearing, write it down or be sure to
tell your public defender when there is a break in the hearing. You want
to make sure that your lawyer can hear everything that is happening
during the hearing.
Other things that can happen at a preliminary hearing includes:
- You can argue bond. At arraignment, your
lawyer can argue for a bond reduction if you are in custody. Be sure to
tell your lawyer what amount you can post (if any), if you have any
property that can be posted, or if you have any family members that will
sign a bond for you.
- Motions can be made: certain motions can be made at
your arraignment. Remember, this is not your trial. There will be a lot
of time to file motions later in your case, and your lawyer may choose
to wait to make sure they have as much information as possible. Speak to
your public defender about any motions that you want filed.
- A misdemeanor offer may be made. This means that
the prosecutor will amend your charge to a misdemeanor. In exchange for
that reduction, you would enter a guilty plea. this means that you will
have a misdemeanor conviction on your criminal record, but that it would
not be a felony.
- A rocket docket offer may be made. In some
counties, they have a process called "the rocket docket." A rocket
docket offer means that you are offered a felony plea, in district
court. You waive your constitutional right to a preliminary hearing. You
waive your constitutional right to have your case presented to the
grand jury. You waive your right to discovery. Be sure to speak with
your public defender before considering a rocket docket offer.
- Continuance. A continuance means that your case
will be delayed. Your lawyer may want to continue the case for many
reasons, so speak to them if a continuance is suggested. You have a
right to a preliminary hearing within 10-days if you are in custody and
within 20-days if you are out of custody. A continuance will likely mean
that you asked to "waive times" which means to waive the number of days
they have to hold your preliminary hearing. If the prosecution misses
those time limits, your case can be dismissed. However, keep in mind
that you can be re-charged. The case does not disappear simply because
the prosecution went outside the time limits.
OFFER ON A PLEA OF GUILTY (MISDEMEANOR OR FELONY)
There are several stages of the proceedings where you may receive a
plea offer. This is an offer in exchange for a plea of guilty. The
prosecutor does not have to make an offer in any case. You do not have
to take an offer in your case. You always have the right to go to trial.
In a district court case (a misdemeanor),
it is likely that you will receive an offer on your first or second
court date. If you have not spoken to an attorney, we recommend that you
do not accept an offer. There are often hidden consequences of a guilty
plea. It is best to speak to an attorney before accepting an offer and
entering a plea of guilty. If you do not have a lawyer, you can ask the
court for a public defender. If you have a lawyer and choose to accept
the guilty plea, make sure that you understand all of the conditions of
When charged with a felony, your case
will usually start in district court. While in district court, there is
a chance that you will receive an offer to resolve your felony. This
means that the prosecutor will amend the felony to a misdmeanor. If this
happens, then there will be a misdemeanor on your criminal record. An
advantage of taking a misdemeanor offer is that you will not risk a
felony conviction. A disadvantage to taking an offer in district court
is that you will not receive your discovery (the proof that the
prosecution will try to use against you). Another disadvantage is that
your attorney will not have time to fully investigate your case and file
pretrial motions. Speak to your attorney about any misdemeanor offer
that is made on your felony case.
Another way to resolve your felony case in district court is through the Rocket Docket.
The rocket docket is where the felony prosecutors come to district
court to make felony offers on felony cases that are set for a
preliminary hearing. This means that you are agreeing to accept a felony
offer once your case is heard in Circuit Court. If you accept a Rocket
Docket offer, you will not have a preliminary hearing. You will not have
your case presented to the Grand Jury. Instead, your case will go
directly to Circuit Court where the prosecutor will expect you to take
the offer that they extended by the prosecutor in district court. The
theory behind Rocket Docket is that prosecutors will make better offers
in exchange for resolving the case quickly. The problem with Rocket
Docket is there is a lot of room for mistake when your attorney does not
have the opportunity to receive discovery, file motions or conduct
investigation. Speak with your attorney before accepting a Rocket Docket
If you receive an offer on a misdemeanor or felony,
sometimes the offer will be for probation. If you accept probation, make
sure that you understand everything that is required of you while you
are on probation. Some standard conditions include:
- Paying fines or restitution. This means that as a condition of your plea you have to pay money, or you could go to jail.
Probation: probation can be supervised or unsupervised. Typically, a
condition of probation is "no new arrests." This means that you cannot
have any other arrests or charges while you are on probation. Typically
speeding is not considered a "new arrest." If your probation is
unsupervised, then you do not have to check in with a probation officer.
If your probation is supervised, you will be required to check in with a
probation officer. Make sure that you have the phone number, address
and email address for your probation officer. You must make sure that
you do everything required or the probation officer will tell the court
that you are not following the rules. If the probation officer reports
you to the court, you may be put in jail.
- Drug Screens: If drug
screens are a condition of your guilty plea, remember that you cannot
miss a screen, must be able to pay for the screen, cannot have a diluted
screen (a screen that comes back that you have too much water in your
urine) or a positive screen. If you are perscribed any medications, be
sure to tell the person who is taking your screen and show them proof
from your doctor. Be sure to tell your lawyer if you are on any
perscribed medications before accepting a plea offer with the
requirement of drug screens.
- Paying Restitution: Paying
restitution to a harmed person is sometimes a condition of a guilty
plea. Be sure that you know exactly how much is owed and how much you
are expected to pay each month. Be sure to tell your lawyer if you do
not think that you can pay the amount in the plea offer. Your lawyer may
be able to negotiate lower payments. Be sure that you know exactly how
you are supposed to pay your restituion.
TRIAL (MISDEMEANOR OR FELONY)
You always have a right to a trial. In district court,
you are entitled to a jury of 6 members of the community. In circuit
court, the jury panel is made up of 12 people. Before you have a trial,
it is very important that you meet with your public defender several
times and speak about every aspect of your case. Your lawyer cannot
adequately prepare without your help, so make sure that your lawyer has
current contact information for you and any potential witnesses.
Things that must happen before you have a trial:
- Tell your lawyer everything you know about your case
- Review all discovery materials with your lawyer.
- Meet with your lawyer to discuss any plea offers that the attorney
has received from the prosecutor on your behalf. Do not meet with the
- Tell your lawyer about any witnesses, and if you know, how to contact those witnesses
- Discuss your right to testify
- Discuss any potential defenses to your charges
- Discuss what your lawyer plans to argue to the jury on your behalf
- Discuss your life. This may seem unrelated, but in a criminal case
your background, family and future all play an important role in your
GRAND JURY (FELONY)
The Grand Jury decides whether or not there
is enough evidence to indict. To indict is to bring formal, criminal
charges against a person for a felony. The Grand Jury does not determine
guilt or innocence. The Grand Jury hears the evidence and decided if
there is sufficient proof to bring charges against a person. The
prosecutor will present evidence to the Grand Jury. After the prosecutor
presents evidence, the Grand Jury will deliberate and decide whether to
return an indictment. Nine of the twelve Grand Juror's must be in
agreement to return an indictment.
Typically, the person who may be charged and the defense attorney do not provide any proof or evidence to the Grand Jury.
If your case has been referred to the Grand Jury, then the proseuctor
has 60-days to present the case to the Grand Jury. If they do not meet
that deadline, then speak to your attorney about filing a motion to get
you out of jail or off bond conditions.
If you had a trial and were convicted, you are entitled to a direct
appeal. This is where you are arguing to an appellate court that the
lower court (your trial court) made mistakes in your trial. You are
asking the appellate court to say that because of those errors, you are
entitled to a new trial. If you entered a guilty plea, you are typically
not entitled to a direct appeal. However, if you and the prosecutor
agreed that you would be able to appeal a certain issue (or issues) as
part of your plea agreement, you may be entitled to an appeal on your
plea of guilty.
If you have a trial in district court, you
appeal your case to the circuit court in the same county. If your trial
was in circuit court (a felony) then you will appeal your case to the
Court of Appeals or to the Kentucky Supreme Court, depending on your
final sentence. If your sentence is less than 20 years, then you appeal
to the Court of Appeals. If your sentence is over 20 years, then your
case is appealed directly to the Kentucky Supreme Court.
only have a certain amount of time to file the necessary paperwork if
you want to appeal your conviction. You must file a Notice of Appeal and
a Designation of Record no later than 30 days after your trial. If you
do not file this paperwork, you may give up your right to an appeal. If
you cannot afford an attorney, you should also file a Motion to Proceed
in Forma Pauperis. You can request samples of these motions from the
clerk at your courthouse.
If you cannot afford an attorney,
you are entitled to a public defender to represent you on your direct
appeal. If you need help with your appeal, be sure to contact the
Appeals Branch of the Department of Public Advocacy by EMAIL or phone at (502)564-8006.
MY LAWYER MESSED UP
Any person who is in custody or on probation, parole or a conditional discharge may file a motion saying that their lawyer messed up. This motion is called an RCr 11.42 motion. In the RCr 11.42 motion, you can argue all the ways that you think your lawyer made a mistake. This is called ineffective assistance of counsel. You must file your RCr 11.42 motion within 3 years of your conviction. This is 3 years from when you were sentenced after a guilty plea or 3 years from when the judgment became final after a jury trial. For more information, see the RCr 11.42 information packet.
If the RCr 11.42 motion is denied by the circuit court, it may be appealed to the Kentucky Court of Appeals by filing a Notice of Appeal, Designation of Record, and Motion to Proceed In Forma Pauperis in the circuit court that overruled the motion. To begin the appeal, the Notice of Appeal and accompanying documents must be filed in the circuit court within 30 days after the circuit court entered the order denying the RCr 11.42. Once the circuit court clerk has certified the record, the defendant has 60 days in which to file the appellate brief at the Court of Appeals. For more information on appealing RCr 11.42 motions, click here for the PC Appeals Information Packet.
If the denial of the RCr 11.42 is upheld by the Kentucky appellate courts and the RCr 11.42 was filed within 1 year of the judgment becoming final (if the defendant went to trial) or within 1 year of final sentencing (if the defendant entered a guilty plea), the defendant may file a Petition for Habeas Corpus in federal district court asking the court to set aside the state-court conviction if it violated the United States Constitution or laws of the United States. In order to file the habeas petition, the defendant must be in custody as a result of the state-court conviction, and the defendant must have timely presented his claims involving the constitutional violation to the Kentucky state courts. For a sample habeas corpus petition form and other information relating to 28 U.S.C. § 2254 habeas corpus actions, click here.
NEWLY DISCOVERED EVIDENCE AND FIXING MISTAKES
You have the right to challenge mistakes that were made in your case, even after your conviction. The law does limit the types of mistakes that you are allowed to challenge. If you find proof of any of the following, you can file a CR 60.02 motion in the court of your conviction:
- Newly discovered evidence
- Perjury or falsified evidence
- Fraud affecting the proceedings
- Any other extraordinary reason
Claims of ineffective assistance of counsel cannot be brought under CR 60.02. Most claims for relief under CR 60.02 must be filed within 1 year of the entry of the judgment or sentencing order. For more information regarding CR 60.02 motions, click here.
OTHER WAYS TO GET RELIEF AFTER A CONVICTION
If you have already served your entire sentence, but remain in custody, you have the right to be released from custody. File a State Writ of Habeas Corpus in the circuit court where you have been confined to request immediate release. To file a Writ of Habeas Corpus with the state court, you must attach an affidavit to the petition stating all of the facts relied upon showing that you are being unlawfully detained. State habeas corpus relief is an extraordinary remedy which is only available when relief under other rules is inadequate. For more information on State Habeas Corpus Petitions, please click here.
If you are in custody and don't agree with the results of a prison adjustment committee proceeding, you have a right to challenge that proceeding. You do this by filing a Petition for Declaration of Rights under KRS 418.040. A Petition for Declaration of Rights must be filed within 1 year from the date when the proceeding occurred. The Petition for Declaration of Rights should be filed in the circuit court in the county in which the action arose. For more information on a Petition for Declaration of Rights, click here.