Grand Jury & Indictment
March 10, 2023
Criminal Sentencing
May 10, 2023
The Pretrial Period
This is the period after an indictment by the grand jury and before a hearing or plea takes place.
After a defendant is indicted they will be arraigned before the Circuit court. During this arraignment, the defendant will be informed of the charge against them and enter a plea (which is almost always not guilty at this time). The court may set a deadline for pretrial motions to be filed at that time.
Pretrial Motions
A pretrial motion is any motion filed prior to the selection of the jury.
Pretrial motions often determine the outcome of the case before it is tried to the jury. For example, the issue of suppression of evidence in a drug case can result in the practical termination of the prosecution or, if ruled admissible, a plea negotiation.
Many pretrial motions address requests to either exclude specific evidence that was obtained in violation of a defendant’s Fourth, Fifth or Sixth Amendment rights. Or suppress other evidence if a defendant’s criminal procedural rights have been violated.
What is Discovery?
Pretrial discovery is perhaps the most important aspect of pretrial motion practice. In essence, discovery permits the defense to know the facts of the Commonwealth's case, e.g., what evidence is available to be used against the defendant.
There are a variety of different mechanisms for a defense attorney to discover information regarding the prosecution’s case, witness testimony and documentation supporting or defending against the charges.
Pretrial discovery allows a defense attorney to know the strengths and weakness of both sides and better inform the defendant of their chances at trial or make an informed decision on entering a plea.
Plea Negotiations
Most criminal cases that get past indictment result in a plea bargain.
How Are Plea Bargains Useful?
Plea bargains are useful for both criminal defendants and prosecution.
For the Defendant
A criminal defendant avoids extended pretrial incarceration, the anxieties and uncertainties of trial, a much speedier disposition, and a prompt start on completing any sentence.
For the Prosecution
The prosecution is able to manage caseloads, expedite the disposition of cases and save countless hours in trial.
For the Courts
The court is better able to control caseloads and conserve judicial resources.
What is a Plea Bargain, Exactly?
Plea bargaining is often the result of many hours or days of back and forth between prosecution on defense. Which results in effectively a contract between the parties. Plea agreements typically address which charge(s) will be plead guilty to, which are dismissed or amended, and may address recommendations on sentencing.
These agreements are often global agreements that address all pending charges in a particular jurisdiction against an individual.
Entering a Plea
Most criminal cases that proceed to this point conclude with the entry of a plea, NOT a trial.
Plea negotiations and dispositions without trial are the rule rather than the exception, such that many courts have separate proceedings just for the entry of pleas.
After a defense attorney has completed pretrial motions and discovery, they are able to assist a defendant in making an informed decision regarding whether to proceed to trial or enter a plea after plea negotiations.
If the defendant chooses to enter into a plea agreement, there will be a formal day in court for the defendant to enter their plea.
The exact mechanics of “taking a plea” will vary from court to court, but generally, the Judge will inquire from the prosecution how the case will resolve. The Judge will speak to the defendant to insure they understand the plea and are entering into it willingly. The prosecutor will normally recite some facts to support the factual basis of the plea. Then the defendant will formally enter their plea.
The court does have the power to accept or refuse the plea. After the plea is entered the case will move to sentencing.
Trial
After a defense attorney has concluded litigation of pretrial matters, pretrial discovery and has exhausted the possibility of a negotiated settlement of the case, the jury trial becomes the next step in the criminal process.
The vast majority of criminal cases never get this far. They either are dismissed or a plea is entered. However, criminal defendants have a constitutional right to have their charges heard in front of a jury of their peers.
The number of jurors for a given case differs depending on the specific charges against a defendant.
A defendant may also choose to have their charges heard in a bench trial, meaning it is heard by the Judge only, without a jury.
Learn more about the 7 Steps of the Criminal Trial Process in Kentucky, proceed to Step 6, Sentencing
