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
You 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 encounter.
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
Keep 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
You 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.
Be sure 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.
It 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
The 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 necessary.
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
Do 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; 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 judge.
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 for felonies.
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: 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.”
- Motions: 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 the plea.
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 offer.
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.
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 prosecutor 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.
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 prosecutor yourself.
- 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 case.
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.
You 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.
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.