The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 1

DPA General Counsel Scott West has updated his classic article The Subpoena: Ethical Use and Unethical Myth-Use (click link on that title for complete article) for a presentation at the DPA Annual Conference on June 15.   Over the next several weeks, The Advocate will post the top ten myths about subpoena's in Kentucky with Scott West's comments.

Myth No. 1:  I can subpoena people to my office.

With the exception of subpoenas to court-ordered depositions, no, you cannot subpoena persons to places to your office or anywhere outside the courtroom.  Rule 7.02(1) provides in pertinent part: “Subpoenas are issued by the clerk.  It shall state the name of the court and title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.”

The rule specifically requires the title of the proceeding if there is one to be included on the form subpoena.  The proceeding may be a court or jury trial, a suppression hearing, or Daubert hearing, or any other type of proceeding.  If the proceeding does not have a title, that’s okay – but the rule clearly implies that there MUST be a proceeding.

Civil Rule 45, which governs subpoenas in civil cases, is more explicit.  CR 45.01 provides that “[s]ubpoenas shall not be used for any purpose except to command the attendance of the witness and production of documentary or other tangible evidence at a deposition, hearing or trial.”  This provision lends support to the implication of RCr 7.02 Since RCr 13.04 applies the Rules of Civil Procedure in a criminal case so long as they are not superseded by or inconsistent with the Rules of Criminal Procedure.  In this instance, CR 45.01 would be interpretive, not inconsistent, with the criminal rule.

KBA ethical opinions E-423, E-140 provide:  “Use of a subpoena for ex parte investigation is strictly prohibited.”

Note also Hilliard v. Commonwealth, 158 S.W.3d 758, 764 (Ky. 2005), quoting U.S. v. LaFuente, 991 F.2d 1406, 1411 (8th Circ. 1993):  “The government may not use trial subpoenas to compel prospective trial witnesses to attend pretrial interviews with government attorneys."  The rule against subpoenaing witnesses to places outside the courtroom applies equally to the government.  Neither the Commonwealth Attorney nor the County Attorney have a superior right to subpoena persons to places outside away from the courtroom.  Yet, there is an abundance of anecdotal evidence of prosecutors doing just that.  This writer is personally aware of one Commonwealth Attorney being reprimanded by a Circuit Judge for subpoenaing witnesses to his office. 

On a different occasion, I witnessed a hearing where the issue was whether the Commonwealth Attorney could subpoena reluctant witnesses to his office.  (I do not know whether he had filed a motion asking for permission in advance, or whether he had attempted to subpoena a witness and defense attorney was objecting.) At the hearing, he implored the Court to allow him to use the subpoena for that purpose. “There has to be some way I can make them talk to me!”

The defense attorney replied “Your Honor, I have spent the last 25 years having doors slammed in my face by witnesses who didn’t want to talk to me, and Lord willing, I’ll have 25 more.”  (At that moment, I felt a special kinship to that defense attorney.)

I do not know how that hearing turned out -- the Court took it under advisement – but the lesson to me was clear.  If you want to talk to a witness and the witness will not cooperate, move for a deposition or find another lawful way to interview the witness.  Just do not subpoena him to your office.

Contributed by Scott West 

Pretrial Release and HB463

Definition

KRS 446.010 Definitions for statutes generally
(33) "Pretrial risk assessment" means an objective, research based, validated assessment tool that measures a defendant's risk of flight and risk of anticipated criminal conduct while on pretrial release pending adjudication.

Use of the assessment tool is required. Courts should not be able to detain accused persons pretrial based on a personal opinion or an intention to punish the defendant for a crime of which he has not yet been convicted.


Limits on Pretrial Incarceration

New Section of KRS 431
In considering pretrial release, courts shall consider three factors:

  •  Is the defendant a flight risk?
  •  Is the defendant unlikely to appear for trial?
  •  Is the defendant likely to be a danger to the public if released?

If the defendant is LOW risk, LIKELY to appear for trial, and NOT LIKELY to be a danger to others, the court shall order the defendant released on ROR or unsecured bond.


If the defendant is MODERATE risk of flight, nonappearance, or danger to others, the court shall order defendant released on ROR or unsecured bond, but shall consider ordering GPS monitoring, drug testing, increased supervision, or other conditions.


KRS 431.525 Conditions for establishing amount of bail
Maximum Amount of Pretrial Bond for Misdemeanors
When a person is charged with one or more misdemeanors, bail shall be a single amount no higher than the fine and costs for a single count of the highest misdemeanor charged. This only applies if charged misdemeanors do not involve physical injury or sexual contact.

Maximum Amount of Bail on Appeal
If a person is convicted of a misdemeanor that does not involve physical injury or sexual contact and sentenced to a sentence other than a fine only, bail for release on appeal shall not exceed double the amount of the maximum fine for one count of the highest misdemeanor. If the person was sentenced to a fine only, bail for release on appeal shall not exceed the amount of the fine.
The limits herein shall not apply if the defendant is found to be flight risk or danger to others, but a court denying release based on these factors much document the reasons for the denial in a written order.

New Section of KRS 218A
Any statute to the contrary notwithstanding, a person charged with a 218A offense which may result in presumptive probation (i.e. Possession of Controlled Substance First Degree or Trafficking Controlled Substance Third Degree) shall be released on ROR bond or unsecured bond unless he is found to be flight risk or danger to self or others. If he is not released, the court shall document the reasons in a written order.


Bail Credit for Pretrial Incarceration


Included in the New Section of KRS 431
Regardless of amount of bail, court shall permit credit of $100 per day toward bail, for each day or portion of day in jail. Upon service of sufficient days to satisfy bail, court shall order release. The jailer is responsible for tracking credit.

Release does not happen automatically, but the court must “order the defendant released” after “service of sufficient days in jail”. This means attorneys might need to file motions, depending on a judge’s practices. It will also likely raise client phone calls and complaints for extra days served unless an efficient system for release is developed.The Bail Credit does not apply to anyone found to be a flight risk or danger to others. It also does not apply to anyone convicted (not charged) of:

  • a felony sex offense (KRS 510),
  • 529.100 (Human Trafficking involving commercial sexual activity),
  • 530.020 (Incest),
  • 530.064(1)(a)(Unlawful Transaction with a Minor (Sex)),
  • 531.310 (Use of Minor in Sexual Performance), or
  • 531.320 (Promoting Sexual Performance by Minor),
  • Or who is a Violent Offender.

If a defendant is not released, the court shall document reasons in a written order.


Practice Tip: The Bail Credit does apply in felony cases. Attorneys will want to compare bonds after the effective date of the statute to the historical bonds of a court. If a court that traditionally set a $5000 bond for an offense suddenly starts setting $25,000 bonds for the same offense, it should be challenged as an attempt by the court to circumvent the Bail Credit.


Observation: The amended 431.525 and the new section of KRS 431 appear to be inconsistent. Under the new section, non-financial bond is required unless the defendant is found to be a high (i.e. not low or moderate) risk of flight, non-appearance, or danger. The limits on pretrial bail in 431.525 and the bail credits would only arise when financial bail is permissible, but then specifically do not apply if the defendant is a flight risk or danger. It would seem any defendant who is not a flight risk/danger would be entitled to ROR/unsecured and any defendant who is a flight risk/danger would not be entitled to the limits or credit.

New Guidelines Coming…


New Section of KRS 27A (Court of Justice)

The Supreme Court shall establish guidelines for judges to use for defendants whose pretrial risk assessments are moderate or high risk, both those who would be ordered to jail and those who are eligible for supervision.


Judges shall consider the guidelines.
The clear intent is that the Supreme Court will provide guidance so that even moderate and high risk defendants may be released with conditions.


Overall Observation of Pretrial Release Changes: Aggressive bail appeals under Rule of Criminal Procedure 4.43 will be necessary. If the new laws are applied as written, pretrial detention will be reduced significantly. Unless their practices were already very favorable to pretrial release, courts that do not change detention practices will either be in violation of the new laws or bending the new laws to fit their current practices. Either way, appellate review should be sought often and early to establish consistent implementation of the law, hopefully as the legislature intended.

Contributed by Damon Preston

Complete Overview and Commentary: House Bill 463 - Public Safety and Accountability Act provided to participants today at DPA's 2011 Annual Conference. 

Background: HB 463 as Evidence-Based Policy-Making

It is evident to anyone who surveys the contents of HB 463 that it is a penetrating reform affecting almost every facet of the criminal justice system.  But it is more than that.  It is, in fact, the instantiation of a coherent set of policy decisions which all have one thing in common:  they have been proven to work.  The best way to understand why HB 463 makes the changes it does is to understand HB 463 as a model of evidence-based policy-making.

Evidence-based policy-making is being applied throughout the criminal justice system nationwide - from best ways to deal with status offenders in juvenile court to best practices in re-entry of adult offenders back into the community.  The PEW Center for the States helps states to identify evidence-based policies and incorporate those policies into effective legislation. 

Here is a link to their report on Kentucky.  The final report of the Kentucky Task Force on the Penal Code and Controlled Substances Act, incorporating PEW suggestions into the Kentucky justice system, can be found here.  (Note: HB 463 did not include every recommendation in the report.)

Contributed by Glenn McClister

 

ACCD Releases Policy Statement on Pretrial Justice Practices

This week the American Council of Chief Defenders released a policy statement on Policy Statement on Fair and Effective Pretrial Justice Practices

Executive Summary

Pretrial release practices throughout the country frequently result in the unjust, unnecessary, expensive, and prolonged detention of many individuals prior to trial.

Our legal traditions urge us to reserve pretrial detention for only the most carefully limited circumstances, and all available evidence reflects the importance of doing so.


Pretrial detention has harsh consequences, including the loss of jobs, homes, and family ties. Research has revealed that all other factors being equal, individuals who are detained prior to trial experience more severe ultimate outcomes. Just as importantly, the heavy reliance by many jurisdictions upon monetary bond as a pretrial release condition disproportionately affects the poor and minorities.

Given our evidence‐based ability to accurately identify risk, communities can lower their jail costs while ensuring that only those who pose significant risks of flight or danger are detained.


This American Council of Chief Defenders Policy Statement calls for a new commitment by all criminal justice stakeholders to ensure fair and appropriate pretrial release decision‐making, and outlines key action steps for each pretrial actor. In particular, this statement calls upon defenders to advance the following initiatives:

Examine Pretrial Release Practices Within Their Own Jurisdictions to Identify Key Areas of Improvement. While jurisdictions may share common issues, each has its own unique set of practices and traditions. Where unnecessary or unjust pretrial detention is occurring, defenders ought to identify the particular practices leading to those outcomes.

Identify and Implement National Standards and Best Practices. Several national organizations have developed national standards on pretrial practices, and these provide excellent guidelines for defenders in developing strategies to improve pretrial outcomes. Defenders should become familiar with these standards and strive to implement them in daily practice.

Develop Collaborative Efforts Among All Criminal Justice Stakeholders to Improve Pretrial Practices. Improvements are only feasible where open dialogue is occurring between all pertinent criminal justice leaders. Defenders can lead the effort to develop a collaborative approach to rectifying identified detrimental pretrial practices. This effort ought to include local and state policy‐makers, who determine how resources are allocated.

Develop Effective Pretrial Litigation Strategies. Defenders ought to be equipped with effective and efficient litigation strategies, grounded in local practice and law, to challenge pretrial‐release decisions that result in unnecessary detention.

click here to see entire statement

Louisville Courier Journal Article on Impact of HB 463 on Misdemeanor Arrests

New law will reduce arrests for misdemeanors in Kentucky

Under a new law designed to ease jail overcrowding, police officers will have to issue citations rather than make arrests for dozens of misdemeanors, as long as they believe the suspect is no danger to himself or others and will appear in court to answer the charge.

The law also reduces some felony drug charges to misdemeanors that require citations rather than arrest, such as second-degree possession of a controlled substance.

The changes were pushed by advocates who say there typically is no reason for people charged with misdemeanor crimes to spend time in jail, with taxpayers footing the bill.

Policy Pronouncements - HB 463

In all motions arguing for application of the new statute, the stated policies of the legislature should be cited.


New Section of KRS 532

It is the sentencing policy of the Commonwealth of Kentucky that:
(1) The primary objective of sentencing shall be to maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced;
(2) Reduction of recidivism and criminal behavior is a key measure of the performance of the criminal justice system;
(3) Sentencing judges shall consider:

(b) The likely impact of a potential sentence on the reduction of the defendant's potential future criminal behavior;

Observation - Under what situations would sentencing a defendant to prison improve the outcome for the defendant? Rarely, one would think. Unless prison is necessary to maintain public safety, community supervision with appropriate conditions will usually best meet the stated “sentencing policy of the Commonwealth of Kentucky.”


Practice Tip – Be prepared to argue Separation of Powers if a judge decides not to follow the legislatively enacted sentencing policy of the Commonwealth. Under Section 28 of the Kentucky Constitution, no branch of government may exercise power belonging to another branch. “Sentencing policy” is clearly within the exclusive jurisdiction of the legislative branch and it is for the judicial branch to apply the law as written.


New Section of KRS 218A
The General Assembly hereby finds, determines, and declares that:

(1) The regulation of controlled substances in this Commonwealth is important and necessary for the preservation of public safety and public health; and
(2) Successful, community-based treatment can be used as an effective tool in the effort to reduce criminal risk factors. Therapeutic intervention and ongoing individualized treatment plans prepared through the use of meaningful and validated research-based assessment tools and professional evaluations offer a potential alternative to incarceration in appropriate circumstances and shall be used accordingly.

Included in New Section of KRS 532 (above)

It is the sentencing policy of the Commonwealth of Kentucky that:


(4) All supervision and treatment programs provided for defendants shall utilize evidence-based practices to reduce the likelihood of future criminal behavior


KRS 446.010 Definitions for statutes generally

(15) "Evidence-based practices" means policies, procedures, programs and practices proven by scientific research to reliably produce reductions in recidivism when implemented competently.
Throughout the bill, “evidence-based practices” is a point of emphasis. Pretrial release, probation and parole supervision, and all decisions throughout should be based upon evidence. Myths and personal opinions are not sufficient to support decisions made under any provision of the bill.

Contributed by Damon Preston

the  bill.

Retroactivity and HB 463

Defendants with pending cases on or after June 8, 2011 should be able to “opt in” to applicable provisions of HB 463.
446.110 Offenses committed and rights accruing prior to repeal of law.

No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.

Two requirements must be met for a defendant to be entitled to have the new law applied to him:

1. Prior penalties under the law have to be “clearly mitigated” by the new law, and

2. The defendant has to give unqualified consent to having the new law applied to his case.

Commonwealth v. Phon, 17 S.W.3d 106 (Ky. 2000); Rogers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009)
Formal written motions should be filed to ensure the benefits of the new legislation or to preserve any issue relating to applicability of the new law. The motion should explain why the new provision is “clearly mitigating” and express the unqualified consent of the defendant to the application of the new provision.

Contributed by Damon Preston

HB 463 Official Certified Copy Now Available

Most of the provisions of historic House Bill 463 become effective today.  Representing one of the most sweeping and comprehensive reforms of the criminal justice system in Kentucky in decades, the legislation is based on models which evidence shows have been effective in other states in not only lowering systemic costs but lowering recidivism as well. 

Here is the certified copy and all the statutes effected by HB 463 which are either already in effect or go into effect today.  Once legislation is passed it goes to the revisor of statutes to codify the legislated amendments and additions into the statutes effected by that legislation.  The only “official” or “final” copy of what those new or amended statutes look like belongs to the revisor of statutes.  These are all the statutes effected by HB 463 in their new and final form, including the emergency provisions regarding conditional discharge revocations and those which take effect today.  Those sections which will not take effect till 2012, 2013, etc. are NOT included.  The revisor of statutes has also provided a copy of his certification of the accuracy/authenticity of this copy of the newly revised statutes (he will keep the original on file in his office, as it says in the certification).

The statutes you’ll want to look at first include the KRS 218A statutes, KRS 431 statutes, KRS 532.080, and KRS 534.   

Contributed by Glenn McClister

Other HB 463 related resources

June 2011 Edition of The Advocate Newsletter

DPA District Court Manual (updated to include HB 463)

Stay tuned to this blog or subscribe to updates through email, Twitter or Facebook for more news about HB 463 implementation. 

 

Interim Judiciary Committee Discusses Status Offenders

Lawmakers Want Fewer Children Jailed for Non-Criminal Offenses - Lexington Herald-Leader

Reducing the number is "a priority," state Rep. John Tilley, co-chairman of the Interim Joint Committee on Judiciary, said Friday.

"There's a consensus that nobody wants to detain status offenders," said Tilley, a Democrat from Hopkinsville. "The problem is when those status offenders violate court orders," and they can leave judges with no choice, he said.

"Our hope is we don't have to incarcerate kids for something that is not a crime," said Sen. Tom Jensen, Tilley's co-chairman and a Republican from London. Legislators want to come up with legislation for the 2012 legislative session, he said.