Kansas Code of Criminal Procedure
K.S.A. Chapter 22 - Article 32 - Procedures Before Trial
Current through end of 2013 legislative session
22-3201 The charge; delayed identification of certain witnesses.
22-3202 Joinder of charges and defendants.
22-3203 Consolidation for trial of separate indictments or informations.
22-3204 Joinder of defendants; separate trials.
22-3205 Arraignment.
22-3206 Time of arraignment.
22-3207 Misnomer.
22-3208 Pleadings and motions.
22-3209 Pleas; effect.
22-3210 Plea of guilty or nolo contendere.
22-3211 Depositions.
22-3212 Discovery and inspection.
22-3213 Demands for production of statements and reports of witnesses.
22-3214 Subpoenas.
22-3215 Motion to suppress confession or admission.
22-3216 Motion to suppress illegally seized evidence.
22-3217 Pretrial conference.
22-3218 Plea of alibi; notice.
22-3219 Defense of lack of mental state; notice and procedure; mental examination.
22-3221 Same; special jury question.
22-3222 Same; mental examination, commitment to certain institutions.
22-3201. The charge; delayed identification of certain witnesses.
(a) Prosecutions in the district court shall be upon complaint, indictment or information.
(b) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient. The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense. An indictment shall be signed by the presiding juror of the grand jury. An information shall be signed by the county attorney, the attorney general or any legally appointed assistant or deputy of either. A complaint shall be signed by some person with knowledge of the facts. Allegations made in one count may be incorporated by reference in another count. The complaint, information or indictment shall state for each count the official or customary citation of the statute, rule and regulation or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall be not ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.
(c) When relevant, the complaint, information or indictment shall also allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.
(d) The court may strike surplusage from the complaint, information or indictment.
(e) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.
(f) When a complaint, information or indictment charges a crime but fails to specify the particulars of the crime sufficiently to enable the defendant to prepare a defense the court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars. At the trial the state's evidence shall be confined to the particulars of the bill.
(g) Except as otherwise provided, the prosecuting attorney shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. Except as otherwise provided, the prosecuting attorney may endorse on it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe. If any witness is to testify and the prosecuting attorney believes the witness who has provided information is in danger of intimidation or retaliation, the prosecuting attorney may delay identifying such informant witness until such informant witness actually testifies but in no event shall identification of a witness be delayed beyond arraignment without further order of the court after hearing and an opportunity of the defendant to be heard.
History: L. 1970, ch. 129, § 22-3201; L. 1974, ch. 152, § 1; L. 1976, ch. 163, § 14; L. 1984, ch. 112, § 22; L. 1992, ch. 239, § 258; L. 1996, ch. 126, § 1; July 1.
22-3202. Joinder of charges and defendants.
(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) When a felony and misdemeanor are joined as separate counts in the same complaint, both of such counts shall be tried together in the trial for which the defendant is bound over on the felony count. If the defendant is not bound over on the felony count, said defendant shall be tried on the misdemeanor count in the same manner as other prosecutions for misdemeanors.
(3) Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
History: L. 1970, ch. 129, § 22-3202; L. 1976, ch. 163, § 15; Jan. 10, 1977.
22-3203. Consolidation for trial of separate indictments or informations.
The court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.
History: L. 1970, ch. 129, § 22-3203; July 1.
22-3204. Joinder of defendants; separate trials.
When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.
History: L. 1970, ch. 129, § 22-3204; L. 1971, ch. 116, § 1; July 1.
(a) Arraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to the defendant the substance of the charge and calling upon the defendant to plead thereto. The defendant shall be given a copy of the indictment or information before the defendant is called upon to plead. Except as provided in subsection (b), if the crime charged is a felony, the defendant must be personally present for arraignment; if a misdemeanor, with the approval of the court, the defendant may appear by counsel. The court may direct any officer who has custody of the defendant to bring the defendant before the court to be arraigned.
(b) Arraignment may be conducted by two-way electronic audio-video communication between the defendant and the judge in lieu of personal presence of the defendant or the defendant's counsel in the courtroom in the discretion of the court. The defendant may be accompanied by the defendant's counsel during such arraignment. The defendant shall be informed of the defendant's right to be personally present in the courtroom during arraignment. Exercising the right to be present shall in no way prejudice the defendant.
(c) The court shall ensure that the defendant has been processed and fingerprinted pursuant to K.S.A. 21-2501 and 21-2501a and amendments thereto.
History: L. 1970, ch. 129, § 22-3205; L. 1989, ch. 98, § 2; L. 1993, ch. 291, § 191; July 1.
(1) A defendant charged with a felony in an information shall appear for arraignment upon such information in the district court not later than the next required day of court after the order of the magistrate binding over the defendant for trial, unless a later time is requested or consented to by the defendant and approved by the court or unless continued by order of the court.
(2) A defendant charged with a felony in an indictment shall appear for arraignment upon such indictment in the district court not later than the next required day of court after arrest upon a warrant issued on the indictment, unless a later time is requested or consented to by the defendant and approved by the court or unless continued by order of the court.
(3) If the preliminary examination is waived, arraignment shall be conducted at the time originally scheduled for the preliminary examination if a judge of the district court is available, subject to assignment pursuant to K.S.A. 20-329 and amendments thereto to conduct the arraignment.
(4) The district judges in every judicial district shall provide by order for one or more required days of court each month in each county of the district, at which time a district judge will be personally present at the courthouse for the purpose of conducting arraignments.
History: L. 1970, ch. 129, § 22-3206; L. 1972, ch. 121, § 1; L. 1976, ch. 163, § 16; am. by Supreme Court (order dated Dec. 5, 1980); L. 1986, ch. 115, § 63; L. 1999, ch. 159, § 6; July 1.
(1) If a defendant be charged or prosecuted by a wrong name, unless he declare his true name before pleading he shall be proceeded against by the name in the complaint, information or indictment.
(2) If the defendant states that another name is his true name, it shall be entered on the minutes of the court; and the subsequent proceedings on the complaint, information or indictment may be had against him by that name.
History: L. 1970, ch. 129, § 22-3207; July 1.
22-3208. Pleadings and motions.
(1) Pleadings in criminal proceedings shall be the complaint, information or indictment, the bill of particulars when ordered, and the pleas of not guilty, guilty or with the consent of the court, nolo contendere. All other pleas, demurrers and motions to quash are abolished and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief.
(2) Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.
(3) Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.
(4) The motion to dismiss shall be made at any time prior to arraignment or within 21 days after the plea is entered. The period for filing such motion may be enlarged by the court when it shall find that the grounds therefor were not known to the defendant and could not with reasonable diligence have been discovered by the defendant within the period specified herein. A plea of guilty or a consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the complaint, information or indictment other than it fails to show jurisdiction in the court or to charge a crime.
(5) A motion before trial raising defenses or objections to prosecution shall be determined before trial unless the court orders that it be deferred for determination at the trial.
(6) If a motion is determined adversely to the defendant, such defendant shall then plead if such defendant had not previously pleaded. A plea previously entered shall stand. If the court grants a motion based on a defect in the institution of the prosecution or in the complaint, information or indictment, it may also order that the defendant be held in custody or that the defendant's appearance bond be continued for a specified time not exceeding one day pending the filing of a new complaint, information or indictment.
(7) Any hearing conducted by the court to determine the merits of any motion may be conducted by two-way electronic audio-video communication between the defendant and defendant's counsel in lieu of personal presence of the defendant and defendant's counsel in the courtroom in the discretion of the court. The defendant shall be informed of the defendant's right to be personally present in the courtroom during such hearing if the defendant so requests. Exercising the right to be present shall in no way prejudice the defendant.
History: L. 1970, ch. 129, § 22-3208; L. 1989, ch. 98, § 3; L. 2010, ch, 135, § 18, July 1.
(1) A plea of guilty is admission of the truth of the charge and every material fact alleged therein.
(2) A plea of nolo contendere is a formal declaration that the defendant does not contest the charge. When a plea of nolo contendere is accepted by the court, a finding of guilty may be adjudged thereon. The plea cannot be used against the defendant as an admission in any other action based on the same act.
(3) A plea of not guilty denies and puts in issue every material fact alleged in the charge.
(4) If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty on behalf of the defendant.
History: L. 1970, ch. 129, § 22-3209; July 1.
22-3210. Plea of guilty or nolo contendere.
(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.
(b) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made.
(c) In traffic infraction, cigarette or tobacco infraction and misdemeanor cases the court may allow the defendant to appear and plead by counsel.
(d) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.
(e) (1) Any action under subsection (d)(2) must be brought within one year of: (A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for a writ of certiorari to the United States supreme court or issuance of such court’s final order following the granting of such petition.
(2) The time limitation herein may be extended by the court only upon an additional, affirmative showing of excusable neglect by the defendant.
History: L. 1970, ch. 129, § 22-3210; L. 1982, ch. 146, § 1; L. 1984, ch. 39, § 39; L. 1994, ch. 291, § 60; L. 1996, ch. 214, § 31; L. 2009, ch. 61, § 1; April 16.
(1) If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness' testimony is material and that it is necessary to take the witness' deposition in order to prevent a failure of justice, the court at any time after the filing of a complaint or indictment may upon motion of a defendant and notice to the parties order that the witness' testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place.
(2) If a witness is committed for failure to give bond to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may order that the witness' deposition be taken. After the deposition has been subscribed the court may discharge the witness.
(3) The prosecuting attorney may apply to the court for an order authorizing the prosecuting attorney to take the deposition of any witness for any of the reasons and subject to the limitations stated in subsection (1). Upon the filing of such application, the court shall set the matter for hearing and shall order the defendant to be present at such hearing. If, upon hearing, the court determines that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness' testimony is material and that it is necessary to prevent a failure of justice, the court may authorize the prosecuting attorney to take the deposition of the witness.
(4) If the crime charged is a felony, the prosecuting attorney may apply to the court for an order authorizing the prosecuting attorney to take the deposition of any essential witness. Upon the filing of such application, the court shall set the matter for hearing and shall order the defendant to be present at such hearing. If, upon hearing, the court determines that the witness is an essential witness, the court shall authorize the prosecuting attorney to take the deposition of the witness in the county where the complaint or indictment has been filed. Upon application, the court may order that a deposition taken pursuant to this subsection be videotaped.
(5) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time.
(6) A deposition shall be taken in the manner provided in civil actions. The court, upon request of the defendant, may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.
(7) Whenever the court authorizes the taking of a deposition, other than a deposition upon written interrogatories, the court shall make a concurrent order requiring that the defendant be present when the deposition is taken. If it appears that the presence of the defendant may be coercive to the witness whose deposition is to be taken, the court shall order that the deposition be taken before a judge.
(8) At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears that:
(a) The witness is dead;
(b) the witness is out of the state and the witness' appearance cannot be obtained, unless it appears that the absence of the witness was procured by the party offering the deposition;
(c) the witness is unable to attend or testify because of sickness or infirmity; or
(d) the party offering the deposition has been unable to procure the attendance of the witness by subpoena or other process.
Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering party to offer all of it which is relevant to the part offered, and any party may offer other parts.
(9) Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.
(10) As used in this section, "essential witness" means a prospective witness in the prosecution of a felony who is an eyewitness to the felony or without whose testimony a conviction could not be obtained because the testimony would establish an element of the felony that cannot be proven in any other manner.
History: L. 1970, ch. 129, § 22-3211; L. 1982, ch. 147, § 1; L. 1987, ch. 115, § 1; July 1.
22-3212. Discovery and inspection.
(a) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph the following, if relevant: (1) Written or recorded statements or confessions made by the defendant, or copies thereof, which are or have been in the possession, custody or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (2) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (3) recorded testimony of the defendant before a grand jury or at an inquisition; and (4) memoranda of any oral confession made by the defendant and a list of the witnesses to such confession, the existence of which is known, or by the exercise of due diligence may become known to the prosecuting attorney.
(b) (1) Except as provided in subsection (l), upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution.
(2) Except as provided in subsections (a)(2) and (a)(4), and as otherwise provided by law, this section does not authorize the discovery or inspection of reports, memoranda or other internal government documents made by officers in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses other than the defendant.
(3) Except as provided in subsection (g), this section does not require the prosecuting attorney to provide unredacted vehicle identification numbers or personal identifiers of persons mentioned in such books, papers or documents.
(4) As used in this subsection, personal identifiers include, but are not limited to, birthdates, social security numbers, taxpayer identification numbers, drivers license numbers, account numbers of active financial accounts, home addresses and personal telephone numbers of any victims or material witnesses.
(5) If the prosecuting attorney does provide the defendant’s counsel with unredacted vehicle identification numbers or personal identifiers, the defendant’s counsel shall not further disclose the unredacted numbers or identifiers to the defendant or any other person, directly or indirectly, except as authorized by order of the court.
(6) If the prosecuting attorney provides books, papers or documents to the defendant’s counsel with vehicle identification numbers or personal identifiers redacted by the prosecuting attorney, the prosecuting attorney shall provide notice to the defendant’s counsel that such books, papers or documents had such numbers or identifiers redacted by the prosecuting attorney.
(7) Any redaction of vehicle identification numbers or personal identifiers by the prosecuting attorney shall be by alteration or truncation of such numbers or identifiers and shall not be by removal.
(c) If the defendant seeks discovery and inspection under subsection (a)(2) or subsection (b), the defendant shall:
(1) Permit the attorney for the prosecution to inspect and copy or photograph scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof, which the defendant intends to produce at any hearing, are material to the case and will not place an unreasonable burden on the defense, and
(2) provide for the attorney for the prosecution, no less than 30 days prior to trial, a summary or written report of what any expert witness intends to testify, including the witness’ qualifications, the witness’ opinions and the bases and reasons for such opinions.
(d) except as to scientific or medical reports, subsection (c) does not authorize the discovery or inspection of reports, memoranda or other internal defense documents made by the defendant, or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prosecution or defense witnesses, or by prospective prosecution or defense witnesses, to the defendant, the defendant's agents or attorneys.
(e) All disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, such disclosures shall be made as provided in this section.
(f) The prosecuting attorney and the defendant shall cooperate in discovery and reach agreement on the time, place and manner of making the discovery and inspection permitted, so as to avoid the necessity for court intervention.
(g) Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted enlarged or deferred or make such other order as is appropriate. Upon motion, the court may permit either party to make such showing, in whole or in part, in the form of a written statement to be inspected privately by the court. If the court enters an order granting relief following such a private showing, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
(h) Discovery under this section must be completed no later than 21 days after arraignment or at such reasonable later time as the court may permit.
(i) If, subsequent to compliance with an order issued pursuant to this section, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under this section, the party shall promptly notify the other party or the party's attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.
(j) For crimes committed on or after July 1, 1993, the prosecuting attorney shall provide all prior convictions of the defendant known to the prosecuting attorney that would affect the determination of the defendant's criminal history for purposes of sentencing under a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq. prior to their repeal, or the revised Kansas sentencing guidelines act, K.S.A. 21-6801 through 21-6824, and amendments thereto.
(k) The prosecuting attorney and defendant shall be permitted to inspect and copy any juvenile files and records of the defendant for the purpose of discovering and verifying the criminal history of the defendant.
(l) (1) In any criminal proceeding, any property or material that constitutes a visual depiction, as defined in subsection (a)(2) of K.S.A. 2011 Supp. 21-5510, and amendments thereto, shall remain in the care, custody and control of either the prosecution, law enforcement or the court.
(2) Notwithstanding subsection (b), if the state makes property or material described in this subsection reasonably available to the defendant, the court shall deny any request by the defendant to copy, photograph, duplicate or otherwise reproduce any such property or material submitted as evidence.
(3) For the purpose of this subsection, property or material described in this subsection shall be deemed to be reasonably available to the defendant if the prosecution provides ample and liberal opportunity for inspection, viewing and examination of such property or material at a government facility, whether inside or outside the state of Kansas, by the defendant, the defendant’s attorney and any individual the defendant may seek to qualify to furnish expert testimony at trial.
History: L. 1970, ch. 129, § 22-3212; am. by Supreme Court (order dated Dec. 5, 1980); L. 1992, ch. 239, § 259; L. 1993, ch. 291, § 192; L. 1994, ch. 291, § 61; L. 1997, ch. 181, § 4; L. 2010, ch. 90, § 1; L. 2010, ch, 135, § 19; L. 2011, ch. 30, § 125, L. 2012, ch. 40, § 1; L. 2012, ch. 143, § 1; L. 2013, ch. 133, § 12; July 1.
22-3213. Demands for production of statements and reports of witnesses.
(1) In any criminal prosecution brought by the state of Kansas, no statement or report in the possession of the prosecution which was made by a state witness or prospective state witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination at the preliminary hearing or in the trial of the case.
(2) After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
(3) If the prosecution claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the prosecution to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the prosecution and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.
(4) The term "statement," as used in subsections (2) and (3) of this section in relation to any witness called by the prosecution means --
(a) a written statement made by said witness and signed or otherwise adopted or approved by him; or
(b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement.
History: L. 1970, ch. 129, § 22-3213; July 1.
(1) The prosecution and any person charged with a crime shall be entitled to the use of subpoenas and other compulsory process to obtain the attendance of witnesses. Except as otherwise provided by law, such subpoenas and other compulsory process shall be issued and served in the same manner and the disobedience thereof punished the same as in civil cases.
(2) All courts having criminal jurisdiction shall have the power to compel the attendance of witnesses from any county in the state to testify either for the prosecution or for the defendant and to direct law enforcement officers to serve subpoenas to obtain the attendance of witnesses at all proceedings conducted by the court anytime after the arrest of any person.
(3) It shall not be necessary to tender any fee or mileage allowance to any witness when he is served with a subpoena to attend any criminal case and give testimony either on behalf of the prosecution or the defendant.
History: L. 1970, ch. 129, § 22-3214; L. 1994, ch. 286, § 2; July 1.
22-3215. Motion to suppress confession or admission.
(1) Prior to the preliminary examination or trial a defendant may move to suppress as evidence any confession or admission given by him on the ground that it is not admissible as evidence.
(2) The motion shall be in writing and shall allege the grounds upon which it is claimed that the confession or admission is not admissible as evidence.
(3) If the motion alleges grounds which, if proved, would show the confession or admission not to be admissible the court shall conduct a hearing into the merits of the motion.
(4) The burden of proving that a confession or admission is admissible shall be on the prosecution.
(5) The issue of the admissibility of the confession or admission shall not be submitted to the jury. The circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission.
(6) The motion shall be made before preliminary examination or trial, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the preliminary examination or the trial.
History: L. 1970, ch. 129, § 22-3215; July 1.
22-3216. Motion to suppress illegally seized evidence.
(1) Prior to the trial a defendant aggrieved by an unlawful search and seizure may move for the return of property and to suppress as evidence anything so obtained.
(2) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were lawful shall be on the prosecution. If the motion is granted then at the final conclusion of the case, the court shall order the suppressed evidence restored to the party entitled thereto, unless it is otherwise subject to lawful detention.
(3) The motion shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.
(4) A motion to suppress illegally seized evidence may be made before or during a preliminary examination. If the motion is granted the suppressed evidence shall be held subject to further order of the magistrate. If the defendant is bound over for trial, the suppressed evidence shall thereupon become subject to the orders of the district court. If the defendant is not bound over and if no further proceedings are instituted on the particular charge or involving the particular suppressed evidence within ninety (90) days after the granting of the order, then the magistrate shall order the suppressed evidence restored to the party entitled thereto, unless it is otherwise subject to lawful detention.
History: L. 1970, ch. 129, § 22-3216; L. 1971, ch. 114, § 5; July 1.
At any time after the filing of the indictment or information the court upon motion of any party or upon its own motion may order one or more conferences to consider such matters as will promote a fair and expeditious trial. At the conclusion of a conference the court shall prepare and file a memorandum of the matters agreed upon. No admissions made by the defendant or his attorney at the conference shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and his attorney. This section shall not be invoked in the case of a defendant who is not represented by counsel.
History: L. 1970, ch. 129, § 22-3217; July 1.
22-3218. Plea of alibi; notice.
(1) In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.
(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.
Within seven days after receipt of the names of defendant's proposed alibi witnesses, or within such other time as is ordered by the court, the prosecuting attorney shall file and serve upon the defendant or his counsel the names of the witnesses known to the prosecuting attorney which the state proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the case. Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided by this section so that reciprocal discovery rights are afforded both parties.
(3) In the event the time and place of the crime are not specifically stated in the complaint, indictment or information, on application of defendant that the time and place be definitely stated in order to enable him to offer evidence in support of a contention that he was not present, and upon due notice thereof, the court shall direct the prosecuting attorney either to amend the complaint or information by stating the time and place of the crime, or to file a bill of particulars to the indictment or information stating the time and place of the crime; and thereafter defendant shall give the notice above provided if he proposes to offer evidence to the effect that he was at some other place at the time of the crime charged.
(4) Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the crime charged. In the event the time or place of the crime has not been specifically stated in the complaint, indictment or information, and the court directs it be amended, or a bill of particulars filed, as above provided, and the prosecuting attorney advises the court that he cannot safely do so on the facts as he has been informed concerning them; or if in the progress of the trial the evidence discloses a time or place of the crime other than alleged, but within the period of the statute of limitations applicable to the crime and within the territorial jurisdiction of the court, the action shall not abate or be discontinued for either of those reasons, but defendant may, without having given the notice above mentioned, offer evidence tending to show he was at some other place at the time of the crime.
History: L. 1970, ch. 129, § 22-3218; amended by Supreme Court (order dated May 10, 1977), to be effective on publication in advance sheets of Supreme Court Reports.
22-3219. Defense of lack of mental state; notice and procedure; mental examination.
(1) Evidence of mental disease or defect excluding criminal responsibility is not admissible upon a trial unless the defendant serves upon the prosecuting attorney and files with the court a written notice of such defendant's intention to assert the defense that the defendant, as a result of mental disease or defect lacked the mental state required as an element of the offense charged. Such notice must be served and filed before trial and not more than 30 days after entry of the plea of not guilty to the information or indictment. For good cause shown the court may permit notice at a later date.
(2) A defendant who files a notice of intention to assert the defense that the defendant, as a result of mental disease or defect lacked the mental state required as an element of the offense charged thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or licensed psychologist by whom such examination shall be made. No order of the court respecting a mental examination shall preclude the defendant from procuring at such defendant's own expense an examination by a physician or licensed psychologist of such defendant's own choosing. A defendant requesting a mental examination pursuant to K.S.A. 22-4508 and amendments thereto may request a physician or licensed psychologist of such defendant's own choosing. The judge shall inquire as to the estimated cost for such examination and shall appoint the requested physician or licensed psychologist if such physician or licensed psychologist agrees to accept compensation in an amount in accordance with the compensation standards set by the board of supervisors of panels to aid indigent defendants. A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.
History: L. 1970, ch. 129, § 22-3219; L. 1977, ch. 120, § 1; L. 1989, ch. 92, § 34; L. 1993, ch. 247, § 1; L. 1995, ch. 251, § 25; Jan. 1, 1996.
22-3221. Same; special jury question.
In any case in which the defense has offered substantial evidence of a mental disease or defect excluding the mental state required as an element of the offense charged, and the jury returns a verdict of "not guilty," the jury shall also answer a special question in the following form: "Do you find the defendant not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required criminal intent?" The provisions of this section shall be in force and take effect on and after January 1, 1996.
History: L. 1995, ch. 251, § 21; July 1.
22-3222. Same; mental examination, commitment to certain institutions.
In any case in which the defendant is found not guilty of a charged crime, and the special question under K.S.A. 22-3221 is answered in the affirmative and the defendant is also found guilty of a lesser included or otherwise charged offense, the court shall proceed in the manner authorized by K.S.A. 22-3429 et seq., and amendments thereto. The provisions of this section shall be in force and take effect on and after January 1, 1996.
History: L. 1995, ch. 251, § 22; July 1.