Refs & annos
Baldwin's Kentucky Revised Statutes AnnotatedRules of Criminal Procedure
Kentucky Rules of Criminal Procedure (RCr) Refs & annos
SUPREME COURT COMMENTARY
1. Derivation and scope
The rules of procedure in criminal cases incorporate refinements of procedural reform without significant departure from the traditional scheme of criminal procedure as outlined in Blackstone's Commentaries, limited in constitutional bills of rights, and enacted in the Criminal Code. A few of the refinements already had become part of the practice as a result of judicial application or changes in other practice, but many improvements universally desired had been unattainable because of rigid requirements of a practice designed more to implement technical concepts than to promote the interests of justice.
The rules were derived from a section by section examination of the 473 sections of the Criminal Code and a comparison of these sections with similar rules in the American Law Institute Code of Criminal Procedure, the Uniform Rules of Criminal Procedure promulgated by the National Conference of Commissioners on Uniform State Laws, recent revisions of the codes of other states, the Kentucky Rules of Civil Procedure, and the Federal Rules of Criminal Procedure. Common law principles and case law applications also were studied, as were related statutes, particularly those that overlapped the code provisions. No changes were made for the sake of change. On the other hand, there was no hesitancy to make a change where it was desirable, as little of the Criminal Code had been reevaluated since 1876.
While the arrangement of the rules is very similar to the Criminal Code, changes in scope and form offer much clarification, simplification and condensation. Without changing the practice, the four titles relating to the classification of offenses, jurisdiction and venue, impeachment, and removal of court clerks were eliminated as matters governed by the constitution, statutes or other court rules, or as not essential to general criminal practice. With few changes in the practice, the three titles relating to police courts, justice's courts, prevention of offenses, and habeas corpus were eliminated as covered by other rules or as more properly statutory. The chapters on bill of exceptions and supersedeas bonds were eliminated as a result of substantive changes, as were several series of sections. Recognized ambiguities and anomalies were eliminated, and restatement of the other provisions makes them briefer and groups them in a manner more easily understood. The practice is made more complete in several phases, particularly the production of evidence.
B. Synopsis of Changes in Practice
The form of the rules makes the changes in substance seem greater than they are. Except as to the requirements for indictments and the pleading practice, most of the changes are not major. There are many changes in detail but some are for the sole purpose of reducing unnecessary differences between civil and criminal practice, and between state and federal courts. The summary of changes here presents only those changes that are significant.
1. General provisions
All criminal proceedings will be governed by rules designed to obtain better administration of justice. Penal actions are not recognized as a separate class, but governed entirely by the criminal rules.
Institution of the complaint as a charging instrument is basically a formalization of existing practice but, with the change allowing magistrates to issue summons in felony cases, and officers to issue citations in any misdemeanor, should result in more complete satisfaction of constitutional requirements and fewer physical arrests. The taking of bail by arresting officers is eliminated and an immediate hearing required in all cases.
3. Preliminary hearings
Prescribing the alternative of an inferior court trial, and incidental powers to require peace bonds, does not change the practice, but a requirement that makes a full transcript of recorded testimony available to the defendant is intended to insure fair play at this stage of the proceedings.
The change to allow the making of one bail bond for appearance at all stages of the proceedings should reduce administrative steps and remove what in many cases is a hardship on defendants. It will be possible for a case to originate in magistrate's court, be tried in circuit court either de novo or upon an indictment, and be retried following a reversal by the Court of Appeals while the defendant remains on bail through execution of two bonds, one at the beginning and the other following his conviction in circuit court. Provisions for broader qualifications and better justification of sureties, and more effective forfeiture procedures, should do much to reduce abuses in bond making. Standards governing the amount of bail are prescribed for the first time, and changes in provisions governing deposit of money and surrender of principal modernize the practice considerably.
5. Grand jury
The only substantial practice change in grand jury proceedings is that if the grand jury to which a defendant is held fails to indict him he cannot be retained in custody or under bond pending submission of the charge to the next grand jury. Here also, a transcript of all testimony relating to his indictment is made available to the defendant. Modern recording devices are authorized and the matter of other persons with the grand jury clarified.
Amendment of section 5 by Court of Appeals, June 26, 1964.
6. Indictment and information
The provision allowing use of the information to prosecute any offense that is not required to be prosecuted by indictment is designed to encourage the use of this process. A federal court type indictment, in which is contained only the name of the offense and the essential facts alleged to constitute it, will replace the old indictment, which was hedged about with several technicalities that served only as sources of trouble. The bill of particulars is made a part of the practice.
7. Process on indictment and information
The only change in the process on indictment and information is the addition of provisions making the practice complete as to information process.
8. Production of evidence
A more complete deposition practice is provided by allowing the Commonwealth to take depositions with protection of the defendant's right of confrontation. Provision for securing the attendance of material witnesses is added. The defendant is permitted to discover and inspect documents seized from him, giving him an opportunity to prepare his explanation of the documents.
9. Arraignment and pleadings
The reduction of technical pleadings, such as demurrers and motions to set aside, to the pleas of guilty and not guilty, and the substitution of a simplified motion practice under which the defendant may move directly for the relief he seeks should result in settlement of preliminary issues without delay.
All jurors in circuit court will be drawn from the jury drum, eliminating the use of bystanders except by consent of the parties. To obtain full attention of all jurors who might participate in the verdict, extra jurors impaneled in felony cases will sit as regular jurors until time for retirement for deliberation, at which time a drawing determines the final makeup of the jury. Elimination of classes and specifications of bias does not change the practice.
Many of the changes in trial provisions make details of records, witnesses, and instructions like the practice in civil cases or like the practice in federal courts. One such change authorizes the court to call expert witnesses. More significant is the elimination of the need to take formal exceptions to the decisions of the court in order to preserve objections for purposes of appeal--formality already abolished in civil procedure. Consequently, the bill of exceptions also is abolished. Other important changes would put matters of joinder and severance largely in the discretion of the court. There are no changes in the practice relating to verdict.
11. New trial and arrest of judgment
The prescription of grounds for new trial is generalized. The time for making the motion is changed from during the term to within five days after the verdict. Requirement that grounds must be stated in the motion in order to preserve them for review is reduced to only those not previously considered by the court.
12. Judgment and execution
Sentence is to be imposed without delay instead of waiting two days in felony cases. The writ of coram nobis is abolished. The presumption that multiple sentences are to be served concurrently is abolished. Provisions as to disability of judge and setting aside sentences make the practice more complete.
The only changes in appeals to circuit court are changes in detail making the practice more uniform. Similar changes are made in provisions relating to appeals to the Court of Appeals. The time for taking appeal is measured from the entry of judgment instead of the term of court. The certificate of appeal is replaced by a notice of appeal; the bill of exceptions is replaced by the transcript of proceedings. Bail on appeal is simplified, and other provisions make familiar provisions of civil appeals, such as agreed statement and narrative statement, a part of appellate procedure in criminal cases.
Rules Crim. Proc., Refs & annos, KY ST RCRP Refs & annos
Current with amendments received through October 1, 2018
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