1. Module 2 Kentucky Victim Assistance Academy Lessons 2.4 – 2.6 1DRAFT KVAA

2.  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 Learning Objectives 2.4: From trial to sentencing 2DRAFT KVAA

3.  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. 3DRAFT KVAA

4. Trial by Jury Process  Selection of Jurors  Prosecutors Opening Statement  Defendant’s Opening Statement ◦ May reserve until later in trial  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  Jury Deliberation  Verdict  Sentencing Phase 4DRAFT KVAA

5. Qualifications of Witness:  Competency KRE 601  Oath or Affirmation required KRE 603  Personal knowledge required KRE 602 Permissible Types of Testimony:  Lay witnesses vs. Expert witnesses KRE 701, KRE 702  Hearsay KRE 801-804 Witnesses 5DRAFT KVAA

6.  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 Verdict 6DRAFT KVAA

7. Activity: Mock Trial 7DRAFT KVAA

8.  Sentencing hearing: KRS 532.055 ◦ Prosecution presents evidence relevant to sentencing ◦ Defense may introduce mitigation evidence ◦ Jury determines punishment ◦ Jury determines concurrent or consecutive Penalty Phase 8DRAFT KVAA

9.  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 Pre-Sentence Investigation 9DRAFT KVAA

10.  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 KRS 421.520 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 Victim Impact Statement 10DRAFT KVAA

11.  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 Imposition of Sentence 11DRAFT KVAA

12.  By Judge whether guilty or not guilty  If guilty includes ◦ Plea ◦ Verdict/findings ◦ Whether entitled to bail/amount ◦ Day of execution of a death sentence ◦ Concurrent/consecutive sentences RCr 11.04 Entry of Judgment 12DRAFT KVAA

13.  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 Probation 13DRAFT KVAA

14.  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 Restitution 14DRAFT KVAA

15.  Questions? 15DRAFT KVAA

16.  Identify who can appeal the verdict of the court  Explain the appellate court process  Identify other possible post conviction proceedings Learning Objectives 2.5: Appeals and Post-conviction process Learning Objectives 2.5: Appeals and Post-conviction process 16DRAFT KVAA

17.  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 Who can appeal? 17DRAFT KVAA

18. Overview  Kentucky criminal trial process in 10 EASY steps WRIT 11.4 2 HABEAS CORPUS Cert petition Circuit Court Direct Appeal Discretionary Review 60.02 District Court 18DRAFT KVAA

19. Kentucky Appellate Courts  Circuit Court  Kentucky Court of Appeals  Kentucky Supreme Court 19DRAFT KVAA

20. 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 20DRAFT KVAA

21. 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 21DRAFT KVAA

22. 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” 22DRAFT KVAA

23. 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. 23DRAFT KVAA

24.  Opinions from the Supreme Court become final on the 21 st 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 31 st day after the date of its rendition unless a petition for rehearing or motion for discretionary review has been filed.  CR 76.30(2). Opinions DRAFT KVAA24

25. 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 25DRAFT KVAA

26.  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%)  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%) Frequency of Issue on Appeal 26DRAFT KVAA

27.  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 REHEARING 27DRAFT KVAA

28. DISCRETIONARY REVIEW  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 28DRAFT KVAA

29. PETITION FOR CERTIORARI TO UNITED STATES SUPREME COURT  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 29DRAFT KVAA

30. POST-CONVICTION pursuant to RCr 11.42  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 30DRAFT KVAA

31. POST-CONVICTION pursuant to RCr 11.42  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! 31DRAFT KVAA

32. APPEAL FROM RCr 11.42  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 32DRAFT KVAA

33. POST-CONVICTION pursuant to CR 60.02  John Doe v. Commonwealth  Seeks to set aside judgment of trial court due to: ◦ Mistake ◦ Inadvertence ◦ Surprise ◦ Excusable neglect ◦ Newly discovered evidence ◦ Perjury ◦ Fraud ◦ Void judgment ◦ Any other reason that is extraordinary in nature 33DRAFT KVAA

34. POST-CONVICTION pursuant to CR 60.02  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 34DRAFT KVAA

35. POST-CONVICTION pursuant to CR 60.02  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 35DRAFT KVAA

36. ORIGINAL ACTIONS  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) 36DRAFT KVAA

37. ORIGINAL ACTIONS  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 37DRAFT KVAA

38. The Federal Court System  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 38DRAFT KVAA

39. PETITION FOR WRIT OF HABEAS CORPUS  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” 39DRAFT KVAA

40. PETITION FOR WRIT OF HABEAS CORPUS  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 40DRAFT KVAA

41.  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. 10 Reasons 41DRAFT KVAA

42. A Case Study: 1983 42DRAFT KVAA

43. (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 43DRAFT KVAA

44. 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 http://ag.ky.gov/criminal/appeals/Documents/criminalappealsbrochure.pdf 44DRAFT KVAA

45.  Liaison between appellate attorney and victim throughout the appellate process  Court Accompaniment  Arrange for meeting with Attorney for the Commonwealth after the argument Victim Assistance Provided by the Office of the Attorney General 45DRAFT KVAA

46. 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 46DRAFT KVAA

47.  Questions? 47DRAFT KVAA

48.  Identify the criminal jurisdiction of the court  Identify the participants  Identify the rights of victims Learning Objectives 2.6: Juvenile Court System Learning Objectives 2.6: Juvenile Court System 48DRAFT KVAA

49.  Cases where offender is under 18  Philosophy ◦ Guided by “the best interest of the child”  Types of offenders ◦ Status ◦ Public ◦ Youthful Juvenile Court System - Jurisdiction 49DRAFT KVAA

50.  Participants  Victim presence and rights Juvenile Court 50DRAFT KVAA

51. Arraignment Detention Hearing Informal Adjustment Pretrial Conference Adjudicatory Hearing Dispositional Hearing Juvenile Court Process 51DRAFT KVAA

52.  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 Youthful Offender Hearing 52DRAFT KVAA

53. Questions ? 53DRAFT KVAA

54. 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. DRAFT KVAA54