The Advocate, Vol. 21, No. 2 (March 1999)

Kentucky Supreme Court Changes Rules

In the January 1999 Bench & Bar, the Kentucky Supreme Court announced changes to their criminal and civil rules which were effective January 1, 1999.

Criminal Rules

  1. RCr 7.24 Discovery & Inspection. While it may seem odd to many Kentucky practitioners, the practice in many counties did not provide for discovery of police reports. Section 2 of this rule makes a significant change. Previously, pretrial discovery of police was not authorized by this rule. Now this rule authorizes that pretrial discovery. The rule still does not authorize pretrial discovery of police memoranda, which is likely to be the subject of future litigation as to the real difference between a report and a memorandum.

    This change has long been advocated by the Kentucky Association of Criminal Defense Lawyers (KACDL) and the Department of Public Advocacy (DPA) and finally is enacted as a result of a proposal last year by KACDL through its President David R. Steele.

    This pragmatic change will increase efficiency of the litigation, encourage reliable advice to a client on the evaluation of the strength of the case and allow informed decisionmaking by a defendant on whether to plead guilty or not. It is likely to reduce delays during trials. Early disclosure allows for adequate time for the defense to competently prepare for the case.

  2. RCr 8.04 Pretrial Diversion. As a result of a KACDL proposal, there is now a new rule providing for pretrial diversion that sets out a simple, straightforward process for misdemeanors and felonies. It requires the agreement of the defendant and prosecution and is subject to approval of the court. KACDL proposed this rule to the Court.

    Passage of this rule by the Kentucky Supreme Court follows upon the 1998 General Assembly's enactment of HB 455 that has provisions for a diversion process that in some significant ways is more restrictive than the new RCr 8.04. The new statute is limited to some Class D felonies where persons have not had a felony in 10 years or been on probation or parole in the last 10 years.

    The Supreme Court of Kentucky has been clear in holding that it, not the Legislature, sets the procedures. RCr 8.04 is obviously seen as procedural by the Kentucky Supreme Court otherwise it would not have promulgated it. This is especially true in this situation since the court considered this Rule at the June, 1998 Bar Convention after the 1998 General Assembly passed its diversion law.

    Litigators are going to have to pay attention to both of these provisions but since the Kentucky Supreme Court has the last word on such matters, RCr 8.04 is likely to be the provision used while the statutory provisions are likely unconstitutional.

  3. RCr 9.57 Deadlock Jury Instruction. As a result of a change proposed by the Court, this rule was strengthened by specifically saying that the instructions given by trial judges to a deadlocked jury can contain only the elements outlined in the rule and no other.This change is wise since it insures that judges cannot leave out or add to this instruction in a way that prejudices one side or the other and is consistent with the Kentucky Supreme Court's direction in Commonwealth v. Mitchell, 943 S.W.2d 625, 627 (Ky. 1997) advising courts not to "tailor individualized versions" and risk reversible error.
  4. RCr 10.24 Motion for Judgment of Acquittal. This rule was amended to allow for a motion for acquittal to be made not only after a guilty verdict but also after a jury failed to return a verdict because they were hung.

    It is wise to allow for this motion in the case where no verdict was returned to permit judges the opportunity to make a decision on this matter when the evidence does not support a verdict of guilty upon retrial. This change is consistent with CR 50.02 and FRCP 29 ( c).

  5. RCr 12.04 When and How Appeal is Taken. The court proposed this change to increase the time for filing a notice of appeal in a criminal case from 10 days to 30 days as set in civil cases. It makes sense to have the same deadlines for filing appeals for both civil and criminal cases to reduce confusion and mistakes.
Civil Rules
  1. CR 24.03 Procedure When Constitutionality Challenged. This rule was amended to require "a copy of the pleading, motion or other paper first raising the challenge" upon the Attorney General. Previously, it was only necessary to serve the notice of the motion.
  2. CR 72.10 Statement of Appeal from District Court. This rule sets new requirements for the contents and service of the statement of appeal.
  3. CR 75.01(1) Designation of Evidence. This rule change requires a designation of untranscribed material even in proceedings that were taken exclusively by video. The rule envisions a list of proceedings by date.
  4. CR 75.02(1) and (3). Transcript of Evidence and Proceedings and CR 75.07(1) and (2) Record Prepared by Clerk and 75.13(1) Narrative Statement. Proceedings that were not videotaped are added to this rule's provisions.
  5. CR 76.12(4)( c)(vi) Form and Content. The Appendix to a brief must now have an index page followed by the judgment.
  6. CR 76.16(2) Appellate Oral Arguments. Visual aids are now specifically authorized to be used at oral argument with leave of court.
  7. CR 76.20(2)(b) Motion for Discretionary Review. The time for filing is changed from 20 to 30 days.
  8. CR 76.30(2) Effective Date of Opinion. Changes the date of finality of Court of Appeals opinion from 21 days to 31 days. Finality for Supreme Court opinions remains 21 days.
  9. CR 79.06(3) Docketing of Appeals. Now only allows docketing when the appellate clerk receives copies of the notice of appeal, judgment and receipt of the filing fee from the circuit clerk.
  10. CR 98(2) Videotape Records. The change makes this rule applicable to cases with videotaped records in addition to the other appellate rules.

The changes in these rules demonstrate that the work of KACDL and DPA to promote rules that are fairer and foster reliable decisionmaking is appreciated by the Kentucky Supreme Court.

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