532.025 Presentence hearings -- Use of juvenile court records -- Aggravating or
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/ky/532-025A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
mitigating circumstances -- Instructions to jury.
(a)Upon conviction of a defendant in cases where the death penalty may be
imposed, a hearing shall be conducted. In such hearing, the judge shall hear
additional evidence in extenuation, mitigation, and aggravation of
punishment, including the record of any prior criminal convictions and pleas
of guilty or pleas of nolo contendere of the defendant, or the absence of any
prior conviction and pleas; provided, however, that only such evidence in
aggravation as the state has made known to the defendant prior to his or her
trial shall be admissible. Subject to the Kentucky Rules of Evidence, juvenile
court records of adjudications of guilt of a child for an offense that would be a
felony if committed by an adult shall be admissible in court at any time the
child is tried as an adult, or after the child becomes an adult, at any
subsequent criminal trial relating to that same person. Juvenile court records
made available pursuant to this section may be used for impeachment
purposes during a criminal trial and may be used during the sentencing phase
of a criminal trial; however, the fact that a juvenile has been adjudicated
delinquent of an offense that would be a felony if the child had been an adult
shall not be used in finding the child to be a persistent felony offender based
upon that adjudication. Release of the child's treatment, medical, mental, or
psychological records is prohibited unless presented as evidence in Circuit
Court. Release of any records resulting from the child's prior abuse and
neglect under Title IV-E or IV-B of the Federal Social Security Act is also
prohibited. The judge shall also hear argument by the defendant or his or her
counsel and the prosecuting attorney, as provided by law, regarding the
punishment to be imposed. The prosecuting attorney shall open and the
defendant shall conclude the argument. In cases in which the death penalty
may be imposed, the judge when sitting without a jury shall follow the
additional procedure provided in subsection
(2)of this section. Upon the
conclusion of the evidence and arguments, the judge shall impose the sentence
or shall recess the trial for the purpose of taking the sentence within the limits
prescribed by law. If the trial court is reversed on appeal because of error only
in the presentence hearing, the new trial which may be ordered shall apply
only to the issue of punishment.
(b)In all cases in which the death penalty may be imposed and which are tried by
a jury, upon a return of a verdict of guilty by the jury, the court shall resume
the trial and conduct a presentence hearing before the jury. Such hearing shall
be conducted in the same manner as presentence hearings conducted before
the judge as provided in paragraph
(a)of this subsection, including the record
of any prior criminal convictions and pleas of guilty or pleas of nolo
contendere of the defendant. Upon the conclusion of the evidence and
arguments, the judge shall give the jury appropriate instructions, and the jury
shall retire to determine whether any mitigating or aggravating circumstances,
as defined in subsection
(2)of this section, exist and to recommend a sentence
for the defendant. Upon the findings of the jury, the judge shall fix a sentence
within the limits prescribed by law.
(2)In all cases of offenses for which the death penalty may be authorized, the judge
shall consider, or include in his or her instructions to the jury for it to consider, any
mitigating circumstances or aggravating circumstances otherwise authorized by law
and any of the following statutory aggravating or mitigating circumstances which
may be supported by the evidence:
(a)Aggravating circumstances:
1. The offense of murder or kidnapping was committed by a person with a
prior record of conviction for a capital offense, or the offense of murder
was committed by a person who has a substantial history of serious
assaultive criminal convictions;
2. The offense of murder or kidnapping was committed while the offender
was engaged in the commission of arson in the first degree, robbery in
the first degree, burglary in the first degree, rape in the first degree, or
sodomy in the first degree;
3. The offender by his or her act of murder, armed robbery, or kidnapping
knowingly created a great risk of death to more than one
(1)person in a
public place by means of a weapon of mass destruction, weapon, or
other device which would normally be hazardous to the lives of more
than one
(1)person;
4. The offender committed the offense of murder for himself, herself, or
another, for the purpose of receiving money or any other thing of
monetary value, or for other profit;
5. The offense of murder was committed by a person who was a prisoner
and the victim was a prison employee engaged at the time of the act in
the performance of his or her duties;
6. The offender's act or acts of killing were intentional and resulted in
multiple deaths;
7. The offender's act of killing was intentional and the victim was:
a. A state or local public official; or
b. A first responder, as defined in KRS 507.070;
8. The offender murdered the victim when an emergency protective order
or a domestic violence order was in effect, or when any other order
designed to protect the victim from the offender, such as an order issued
as a condition of a bond, conditional release, probation, parole, or
pretrial diversion, was in effect; and
9. The offender's act of killing was intentional and resulted in the death of
a child under twelve
(12)years old.
(b)Mitigating circumstances:
1. The defendant has no significant history of prior criminal activity;
2. The capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance even though the
influence of extreme mental or emotional disturbance is not sufficient to
constitute a defense to the crime;
3. The victim was a participant in the defendant's criminal conduct or
consented to the criminal act;
4. The capital offense was committed under circumstances which the
defendant believed to provide a moral justification or extenuation for his
or her conduct even though the circumstances which the defendant
believed to provide a moral justification or extenuation for his or her
conduct are not sufficient to constitute a defense to the crime;
5. The defendant was an accomplice in a capital offense committed by
another person and his or her participation in the capital offense was
relatively minor;
6. The defendant acted under duress or under the domination of another
person even though the duress or the domination of another person is not
sufficient to constitute a defense to the crime;
7. At the time of the capital offense, the capacity of the defendant to
appreciate the criminality of his or her conduct to the requirements of
law was impaired as a result of mental illness or an intellectual disability
or intoxication even though the impairment of the capacity of the
defendant to appreciate the criminality of his or her conduct or to
conform the conduct to the requirements of law is insufficient to
constitute a defense to the crime; and
8. The youth of the defendant at the time of the crime.
(3)The instructions as determined by the trial judge to be warranted by the evidence or
as required by KRS 532.030(4) shall be given in charge and in writing to the jury
for its deliberation. The jury, if its verdict be a recommendation of death, or
imprisonment for life without benefit of probation or parole, or imprisonment for
life without benefit of probation or parole until the defendant has served a minimum
of twenty-five
(25)years of his or her sentence, shall designate in writing, signed by
the foreman of the jury, the aggravating circumstance or circumstances which it
found beyond a reasonable doubt. In nonjury cases, the judge shall make such
designation. In all cases unless at least one
(1)of the statutory aggravating
circumstances enumerated in subsection
(2)of this section is so found, the death
penalty, or imprisonment for life without benefit of probation or parole, or the
sentence to imprisonment for life without benefit of probation or parole until the
defendant has served a minimum of twenty-five
(25)years of his or her sentence,
shall not be imposed.