Ky. Supreme Court adopts rules amendments

By Aaron J. Silletto, Esq.

On October 4, the Kentucky Supreme Court entered Order 2012-10, which adopted numerous amendments to the Rules of Criminal Procedure (RCr), Rules of Civil Procedure (CR), and Family Court Rules of Procedure and Practice (FCRPP). All amendments made by the order will take effect on January 1, 2013. This post will provide a summary of the changes made to the Civil and Criminal rules; in a later post, we will discuss changes made to the Family Court rules.

 I.  Amendments to the Rules of Civil Procedure

 Only two noteworthy changes were made to the Civil Rules. The first concerns CR 45, regarding subpoenas. As amended, CR 45.01(2) now permits a subpoena to be used in a civil case – including a Family Court case, see FCRPP 1(2) – to require a third party to produce documents without the necessity of a deposition of the records custodian. Before this amendment, either the consent of all parties or a court order must have been required before the requirement of a deposition could be dispensed with. In addition, CR 45.03(3) has been amended to make clear that opposing parties and persons whose information is being requested must be given notice of a subpoena (except a trial subpoena) before it is served. Prior to this clarification, the Rule provided that notice had to be given, but did not state whether the notice could be given before or after the subpoena was served. This change will allow another party or person whose information is at issue the opportunity to file a motion to quash or a motion for a protective order before service of the subpoena, per CR 26.03 and CR 45.04(1). (Full disclosure: the author of this post proposed the amendments to CR 45 to the Supreme Court.)

 The second noteworthy change concerns CR 52, relating to judicial findings of fact. Following the amendment, CR 52.01 now requires the trial court to make specific factual findings when granting or refusing permanent injunctions. Previously, the requirement to make specific factual findings only applied to temporary injunctions.

 II.  Amendments to the Rules of Criminal Procedure

 Significant changes have been made to the Rules of Criminal Procedure. First, RCr 4.06 and RCr 4.08(h) now charges Pretrial Services with identifying criminal defendants who are veterans as a part of its duties to gather information that allows the court to set bail. In addition, Pretrial Services may now share that information with the U.S. Department of Veterans Affairs in order to facilitate the provision of services to the defendant (e.g., mental health, counseling, medical, and substance abuse treatment services).

 In a slightly more controversial change, RCr 4.20(1) no longer requires that the defendant be brought before a judge within 12 hours of arrest for a hearing on the issue of bail. I suspect that this provision was eliminated for practical reasons, because in many parts of the state, it is probably difficult to ensure access to a judge in a multi-county district or circuit within 12 hours.

Two small changes affect proceedings before a grand jury. RCr 5.22(2) has been amended to clarify that, not only must an in-custody defendant be released from custody after 60 days if the grand jury has thus far not indicted him, but that any conditions on his bail must also be exonerated. Also, RCr 6.52 now presumes that a criminal summons will issue on an indictment or information unless the Commonwealth requests, and the circuit court agrees, that a warrant should issue instead. Previously, a warrant would be issued by default.

The most substantial criminal rule amendments concern insanity defenses and expert testimony relating to mental disease or defect. RCr 7.24(3) was amended and a new RCr 8.07 was added to now require notice of such evidence to be provided by the defendant to the Commonwealth at least 90 days before trial, and permits the Commonwealth 10 days thereafter in which to request that the defendant be examined by a psychiatrist or psychologist under KRS 504.070. (Previously, notice had to be provided by the defendant only 20 days before trial.) Detailed provisions regarding the content of the experts’ reports on these issues now also are included in the new rule.

Finally, minor revisions have been made to RCr 8.16 and RCr 8.20 to clarify that any defense or objection may be made by pretrial motion, and requiring ruling on most such issues to be made by the trial court in advance of trial.