The Advocate: November 2015

Discovery Reform in Criminal Cases in Kentucky:  A Report from the Field and the Need for Statutory Open File Discovery
by Glenn McClister

Summary:  After reviewing the importance of discovery in Constitutional context, the article reports on a survey of public defenders conducted across the Commonwealth which indicates that prosecutors and law enforcement routinely fail to follow up on the delivery of initial discovery to the defense.  Most often, prosecutors do not monitor the additional discovery which should be provided to the defense and law enforcement does not automatically provide it.  One simple solution to the problem is statutory open file discovery which would require automatic compliance with Constitutionally fundamental discovery obligations.  

Click here to see the complete edition.

Kentucky Added to ABA National Database of Collateral Consequences of Criminal Convictions

The American Bar Association has completed its listing of the collateral consequences of a criminal conviction for the state of Kentucky.  A few years ago, the United States Congress directed the National Institute of Justice to collect and study the collateral consequences of criminal convictions in all jurisdictions throughout the United States.  The National Institute of Justice selected the American Bar Association Criminal Justice Section to perform the necessary research and analysis.  The result is the ABA National Inventory of Collateral Consequences of Conviction (NICCC).  It can be accessed at: http://www.abacollateralconsequences.org/  After agreeing to terms and conditions, one can enter the site and click on the state.  

According to the “resources” page on the website, the ABA’s information on Kentucky was taken, in part, from two law review articles on collateral consequences in Kentucky published in the Northern Kentucky Law Review in 2008.  These articles were also the starting point for the Kentucky Department of Public Advocacy’s (DPA) Collateral Consequences Manual.  DPA had researchers counter-check and update the 2008 information for the publication of its manual in 2013.  It is available at www.dpa.ky.gov.   The manual also includes a thorough chart of immigration consequences of conviction in Kentucky which was put together by experts in immigration law.  In addition to the two law review articles on Kentucky law, the ABA also conducted its own searches using complex algorithms designed to turn up collateral consequences in state statutes and administrative regulations.  The result is comprehensive and thorough.

 

When you click on Kentucky on the national map page, the site allows you to conduct searches in a number of ways.  One can select the collateral consequence of concern and then select the offenses which activate the selected consequence.  Or one can search by keywords.  The website admits that many collateral consequences may serve a protective function: keeping guns out of the hands of violent offenders or protecting the young or elderly against people with a history of abuse.  But the ABA also points out that many collateral consequences “apply across the board to people convicted of crimes, without regard to any relationship between crime and consequence, and frequently without consideration of how long ago the crime occurred or what the individual has managed to accomplish since.”

The website, like the DPA manual, is a valuable starting point for attorneys concerned about adequately informing their clients of the consequences of convictions.  Specific questions from clients will always have to be researched independently.   

Contributed by Glenn McClister