History: L. 1970, ch. 129, § 22-3401; July 1.
(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).
(3) If any trial scheduled within the time limitation prescribed by subsection (1) or (2) is delayed by the application of or at the request of the defendant, the trial shall be rescheduled within 90 days of the original trial deadline.
(4) After any trial date has been set within the time limitation prescribed by subsection (1) or (2), if the defendant fails to appear for the trial or any pretrial hearing, and a bench warrant is ordered, the trial shall be rescheduled within 90 days after the defendant has been surrendered on such warrant. However, if the defendant was subject to the 180-day deadline prescribed by subsection (2) and more than 90 days of the original time limitation remain, then the original time limitation remains in effect.
(5) The time for trial may be extended beyond the limitations of subsections (1) and (2) for any of the following reasons:
(a) The defendant is incompetent to stand trial. If the defendant is subsequently found to be competent to stand trial, the trial shall be scheduled within 90 days of such finding;
(b) A proceeding to determine the defendant's competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section. If the defendant is subsequently found to be competent to stand trial, the trial shall be scheduled within 90 days of such finding;
(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding 90 days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than 90 days, and the trial is commenced within 120 days from the original trial date;
(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than 30 days may be ordered upon this ground.
(6) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.
History: L. 1970, ch. 129, § 22-3402; L. 1976, ch. 163, § 18; L. 2004, ch. 47, § 1; July 1.
(2) A jury in a felony case shall consist of twelve members. However the parties may agree in writing, at any time before the verdict, with the approval of the court, that the jury shall consist of any number less than twelve.
(3) When the trial is to a jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury.
History: L. 1970, ch. 129, § 22-3403; July 1.
(2) A jury in a misdemeanor case shall consist of six members.
(3) Trials in the municipal court of a city shall be to the court.
(4) Except as otherwise provided by law, the rules and procedures applicable to jury trials in felony cases shall apply to jury trials in misdemeanor cases.
(5) The trial of cigarette or tobacco infraction or traffic infraction cases shall be to the court.
History: L. 1970, ch. 129, § 22-3404; L. 1976, ch. 163, § 19; L. 1977, ch. 112, § 8; L. 1981, ch. 154, § 1; L. 1984, ch. 39, § 40; L. 1989, ch. 100, § 1; L. 1990, ch. 109, § 1; L. 1996, ch. 214, § 32; L. 1998, ch. 192, § 4; May 28.
(2) The defendant must be present, either personally or by counsel, at every stage of the trial of traffic infraction, cigarette or tobacco infraction and misdemeanor cases.
History: L. 1970, ch. 129, § 22-3405; L. 1984, ch. 39, § 41; L. 1996, ch. 214, § 33; July 1.
History: L. 1970, ch. 129, § 22-3406; July 1.
(2) The motion shall be in writing and shall state facts which, if true, show that the jury panel was improperly selected or drawn.
(3) If the motion states facts which, if true, show that the jury panel has been improperly selected or drawn, it shall be the duty of the court to conduct a hearing. The burden of proof shall be on the movant.
(4) If the court finds that the jury panel was improperly selected or drawn, the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law.
History: L. 1970, ch. 129, § 22-3407; July 1.
(2) (a) The qualifications of jurors and grounds for exemption from jury service in civil cases shall be applicable in criminal trials, except as otherwise provided by law.
(b) An exemption from service on a jury is not a basis for challenge, but is the privilege of the person exempted.
(3) The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, his attorney or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessary delay or serves no useful purpose.
History: L. 1970, ch. 129, § 22-3408; July 1.
History: L. 1970, ch. 129, § 22-3409; L. 1976, ch. 163, § 20; L. 1981, ch. 154, § 2; L. 1984, ch. 39, § 42; L. 1996, ch. 214, § 34; L. 1998, ch. 192, § 6; May 28.
(2) A juror may be challenged for cause on any of the following grounds:
(a) He is related to the defendant, or a person alleged to have been injured by the crime charged or the person on whose complaint the prosecution was begun, by consanguinity within the sixth degree, or is the spouse of any person so related.
(b) He is attorney, client, employer, employee, landlord, tenant, debtor, creditor or a member of the household of the defendant or a person alleged to have been injured by the crime charged or the person on whose complaint the prosecution was instituted.
(c) He is or has been a party adverse to the defendant in a civil action, or has complained against or been accused by him in a criminal prosecution.
(d) He has served on the grand jury which returned the indictment or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment or information, or on any other investigatory body which inquired into the facts of the crime charged.
(e) He was a juror at a former trial of the same cause.
(f) He was a juror in a civil action against the defendant arising out of the act charged as a crime.
(g) He was a witness to the act or acts alleged to constitute the crime.
(h) He occupies a fiduciary relationship to the defendant or a person alleged to have been injured by the crime or the person on whose complaint the prosecution was instituted.
(i) His state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.
(3) All challenges for cause must be made before the jury is sworn to try the case.
History: L. 1970, ch. 129, § 22-3410; July 1.
History: L. 1970, ch. 129, § 22-3411; Repealed, L. 1981, ch. 155, § 3; July 1.
History: L. 1981, ch. 155, § 2; July 1.
(A) Each defendant charged with a class A felony shall be allowed 12 peremptory challenges.
(B) Each defendant charged with a class B felony shall be allowed eight peremptory challenges.
(C) Each defendant charged with a felony other than class A or class B felony shall be allowed six peremptory challenges.
(D) Each defendant charged with a misdemeanor shall be allowed three peremptory challenges.
(E) Additional peremptory challenges shall not be allowed on account of separate counts charged in the complaint, information or indictment.
(F) The prosecution shall be allowed the same number of peremptory challenges as all the defendants.
(2) For crimes committed on or after July 1, 1993, peremptory challenges shall be allowed as follows:
(A) Each defendant charged with an off-grid felony or a nondrug or drug felony ranked at severity level 1 shall be allowed 12 peremptory challenges.
(B) Each defendant charged with a nondrug felony ranked at severity level 2, 3, 4, 5 or 6, or a drug felony ranked at severity level 2 or 3, shall be allowed 8 peremptory challenges.
(C) Each defendant charged with an unclassified felony, a nondrug severity level 7, 8, 9 or 10, or a drug severity level 4 felony shall be allowed six peremptory challenges.
(D) Each defendant charged with a misdemeanor shall be allowed three peremptory challenges.
(E) The prosecution shall be allowed the same number of peremptory challenges as all defendants.
(F) The most serious penalty offense charged against each defendant furnishes the criterion for determining the allowed number of peremptory challenges for that defendant.
(G) Additional peremptory challenges shall not be allowed when separate counts are charged in the complaint, information or indictment.
(H) Except as otherwise provided in this subsection, the provisions of this section shall apply. In applying the provisions of this section, the trial court may determine the number of peremptory challenges to allow by reviewing the classification for the crime charged, or nearest comparable felony, as it was classified under the criminal law in effect prior to July 1, 1993. If the severity level of the most serious crime charged raises the potential penalty above that of another crime which was classified higher under the criminal law in effect prior to July 1, 1993, the defendant shall be allowed the number of peremptory challenges as for that higher classified crime under the prior system.
(I) The trial court shall resolve any conflicts with a liberal construction in favor of allowing the greater number of peremptory challenges.
(b) After the parties have interposed all of their challenges to jurors, or have waived further challenges, the jury shall be sworn to try the case.
(c) Immediately after the jury is empaneled and sworn, a trial judge may empanel one or more alternate or additional jurors whenever, in the judge's discretion, the judge believes it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable to perform their duties. Such jurors shall be selected in the same manner, have the same qualifications, and be subject to the same examination and challenges and take the same oath and have the same functions, powers and privileges as the regular jurors. Each party shall be entitled to one peremptory challenge to such alternate jurors. Such alternate jurors shall be seated near the other jurors, with equal power and facilities for seeing and hearing the proceedings in the case, and they must attend at all times upon the trial of the cause in company with the other jurors. They shall obey the orders of and be bound by the admonition of the court upon each adjournment, but if the regular jurors are ordered to be kept in custody during the trial of the cause, such alternate jurors also shall be kept in confinement with the other jurors. Upon final submission of the case to the jury, the alternate jurors may be discharged or they may be retained separately and not discharged until the final decision of the jury. If the alternate jurors are not discharged on final submission of the case and if any regular juror shall be discharged from jury service in any such action prior to the jury reaching its verdict, the court shall draw the name of an alternate juror who shall replace the juror so discharged and be subject to the same rules and regulations as though such juror had been selected as one of the original jurors.
History: L. 1970, ch. 129, § 22-3412; L. 1973, ch. 144, § 1; L. 1981, ch. 155, § 1; L. 1983, ch. 114, § 1; L. 1984, ch. 39, § 43; L. 1994, ch. 291, § 62; L. 1996, ch. 214, § 35; L. 1998, ch. 192, § 7; May 28.
History: L. 1970, ch. 129, § 22-3413; July 1.
(2) The parties may then respectively offer rebutting testimony only, unless the court, for good cause, permits them to offer evidence upon their original case.
(3) At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The judge shall instruct the jury at the close of the evidence before argument and the judge, in the judge's discretion, after the opening statements, may instruct the jury on such matters as in the judge's opinion will assist the jury in considering the evidence as it is presented. In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107 and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.
The court shall pass upon the objections to the instructions and shall either give each instruction as requested or proposed or refuse to do so, or give the requested instruction with modification. All instructions given or requested must be filed as a part of the record of the case.
The court reporter shall record all objections to the instructions given or refused by the court, together with modifications made, and the rulings of the court.
No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.
(4) When the jury has been instructed, unless the case is submitted to the jury on either side or on both sides without argument, the prosecuting attorney may commence and may conclude the argument. If there is more than one defendant, the court shall determine their relative order in presentation of evidence and argument. In arguing the case, comment may be made upon the law of the case as given in the instructions, as well as upon the evidence.
History: L. 1970, ch. 129, § 22-3414; L. 1971, ch. 114, § 7; L. 1998, ch. 185, § 3; July 1.
(b) The county or district attorney or the attorney general may at any time, on behalf of the state, grant in writing to any person:
(1) Transactional immunity. Any person granted transactional immunity shall not be prosecuted for any crime which has been committed for which such immunity is granted or for any other transactions arising out of the same incident.
(2) Use and derivative immunity. Any person granted use and derivative use immunity may be prosecuted for any crime, but the state shall not use any testimony against such person provided under a grant of such immunity or any evidence derived from such testimony. Any defendant may file with the court a motion to suppress in writing to prevent the state from using evidence on the grounds that the evidence was derived from and obtained against the defendant as a result of testimony or statements made under such grant of immunity. The motion shall state facts supporting the allegations. Upon a hearing on such motion, the state shall have the burden to prove by clear and convincing evidence that the evidence was obtained independently and from a collateral source.
(c) Any person granted immunity under either or both of subsection (b)(1) or (2) may not refuse to testify on grounds that such testimony may self incriminate unless such testimony may form the basis for a violation of federal law for which immunity under federal law has not been conferred. No person shall be compelled to testify in any proceeding where the person is a defendant.
(d) No immunity shall be granted for perjury as provided in K.S.A. 21-3805 and amendments thereto which was committed in giving such evidence.
History: L. 1970, ch. 129, § 22-3415; L. 1972, ch. 122, § 1; L. 1999, ch. 56, § 3; July 1.
History: L. 1970, ch. 129, § 22-3416; July 1.
History: L. 1970, ch. 129, § 22-3417; July 1.
History: L. 1970, ch. 129, § 22-3418; July 1.
(2) If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.
(3) If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within seven days after the jury is discharged or within such further time as the court may fix during the seven-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.
History: L. 1970, ch. 129, § 22-3419; July 1.
(2) If the jury is permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or allow themselves to be addressed by any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them, and that such admonition shall apply to every subsequent separation of the jury.
(3) After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.
(4) The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity, or other necessity to be found by the court requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.
History: L. 1970, ch. 129, § 22-3420; July 1.
History: L. 1970, ch. 129, § 22-3421; L. 1984, ch. 112, § 23; July 1.
History: L. 1970, ch. 129, § 22-3422; July 1.
(a) It is physically impossible to proceed with the trial in conformity with law; or
(b) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law and the defendant requests or consents to the declaration of a mistrial; or
(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution; or
(d) The jury is unable to agree upon a verdict; or
(e) False statements of a juror on voir dire prevent a fair trial; or
(f) The trial has been interrupted pending a determination of the defendant's competency to stand trial.
(2) When a mistrial is ordered, the court shall direct that the case be retained on the docket for trial or such other proceedings as may be proper and that the defendant be held in custody pending such further proceedings, unless he is released pursuant to the terms of an appearance bond.
History: L. 1970, ch. 129, § 22-3423; July 1.
(b) If the verdict or finding is not guilty, judgment shall be rendered immediately and the defendant shall be discharged from custody and the obligation of the defendant's appearance bond.
(c) If the verdict or finding is guilty, judgment shall be rendered and sentence pronounced without unreasonable delay, allowing adequate time for the filing and disposition of post-trial motions and for completion of such presentence investigation as the court may require.
(d) If the verdict or finding is guilty, upon request of the victim or the victim's family and before imposing sentence, the court shall hold a hearing to establish restitution. The defendant may waive the right to the hearing and accept the amount of restitution as established by the court. family, the order shall be enforced as a judgment of restitution pursuant to K.S.A. 1995 Supp. 60-4301 through 60-4304.
(e) Before imposing sentence the court shall: (1) Allow the prosecuting attorney to address the court, if the prosecuting attorney so requests; (2) afford counsel an opportunity to speak on behalf of the defendant; (3) allow the victim or such members of the victim's family as the court deems appropriate to address the court, if the victim or the victim's family so requests; and (4) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment.
(f) After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal and of the right of a person who is unable to pay the costs of an appeal to appeal in forma pauperis.
History: L. 1970, ch. 129, § 22-3424; L. 1991, ch. 90, § 2; L. 1993, ch. 166, § 4; L. 1993, ch. 291, § 273; L. 1995, ch. 257, § 3; July 1.
(2) Any person confined in the county jail for failure to pay a fine or costs may be released by the court which imposed sentence, upon satisfactory proof that such person is unable to pay such fine and costs. A release under this section shall not discharge a person from his liability to pay the fine and costs adjudged against him, but they may thereafter be collected by execution as on judgments in civil cases.
History: L. 1970, ch. 129, § 22-3425; July 1.
(b) If defendant is sentenced to the custody of the secretary of corrections the journal entry shall record all the information required under K.S.A. 21-4620 and amendments thereto to be included in a judgment form, if it were used.
(c) The journal entry shall also include the name and residence of the officer before whom the preliminary trial was held, the judge presiding at the trial, and of the witnesses sworn on such trial.
(d) If the sentence is increased because defendant previously has been convicted of one or more felonies the record shall contain a statement of each of such previous convictions, showing the date, in what court, of what crime and a brief statement of the evidence relied upon by the court in finding such previous convictions. Defendant shall not be required to furnish such evidence.
(e) It shall be the duty of the court personally to examine the journal entry and to sign the same.
(f) For felony convictions for crimes committed on or after July 1, 1993, the journal entry shall contain the following information:
(1) Court case number;
(2) Kansas bureau of investigation number;
(3) case tracking number;
(4) court O.R.I. number;
(5) the type of counsel;
(6) type of trial, if any;
(7) pretrial status of the offender;
(8) the date of the sentencing hearing;
(9) a listing of offenses the defendant is convicted of;
(10) the criminal history classification;
(11) the sentence imposed for each offense including postrelease or probation supervision durations;
(12) whether the sentences run concurrently or consecutively;
(13) amount of credit for time spent incarcerated;
(14) period ordered in county jail as a condition of probation;
(15) a listing of offenses in which a departure sentence is imposed;
(16) type of departure sentence; and
(17) factors cited as a basis for departure sentence.
The journal entry shall be recorded on a form approved by the Kansas sentencing commission.
History: L. 1970, ch. 129, § 22-3426; L. 1980, ch. 104, § 6; L. 1992, ch. 239, § 260; L. 1993, ch. 291, § 193; L. 1994, ch. 291, § 91; L. 1994, ch. 341, § 17; L. 1995, ch. 251, § 26; L. 1996, ch. 258, § 6; July 1.
(1) Court case number;
(2) Kansas bureau of investigation number;
(3) case tracking number;
(4) court O.R.I. number;
(5) name of the judge who heard the evidence;
(6) those present and whether defendant's counsel was appointed or retained;
(7) date violator was sentenced to department of corrections;
(8) offenses for which defendant was sentenced and time to be served for each crime;
(9) total imprisonment term;
(10) supervision revoked;
(11) date motion to revoke defendant's probation was filed; and
(12) whether there are sufficient evidence and grounds for the court to revoke defendant's probation.
(b) It shall be the duty of the court to personally examine the journal entry and sign the same.
(c) The journal entry shall be recorded on a form approved by the Kansas sentencing commission.
History: L. 1993, ch. 291, § 194; L. 1994, ch. 291, § 92; L. 1994, ch. 341, § 18; L. 1995, ch. 251, § 27; L. 1996, ch. 258, § 7; July 1.
(2) The certified copy of a judgment and sentence to confinement or imprisonment shall be sufficient authority for the jailer or warden or other person in charge of the place of confinement to detain such person for the period of the sentence.
History: L. 1970, ch. 129, § 22-3427; L. 1980, ch. 104, § 7; April 24.
(b) Within 90 days of the defendant's admission, the chief medical officer of the state security hospital shall send to the court a written evaluation report. Upon receipt of the report, the court shall set a hearing to determine whether or not the defendant is currently a mentally ill person. The hearing shall be held within 30 days after the receipt by the court of the chief medical officer's report.
(c) The court shall give notice of the hearing to the chief medical officer of the state security hospital, the district or county attorney, the defendant and the defendant's attorney. The court shall inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney as provided in K.S.A. 22-4503 et seq. and amendments thereto. The defendant shall remain at the state security hospital pending the hearing.
(d) At the hearing, the defendant shall have the right to present evidence and cross-examine witnesses. At the conclusion of the hearing, if the court finds by clear and convincing evidence that the defendant is not currently a mentally ill person, the court shall dismiss the criminal proceeding and discharge the defendant, otherwise the court may commit the defendant to the state security hospital for treatment or may place the defendant on conditional release pursuant to subsection (4).
(2) Subject to the provisions of subsection (3):
(a) Whenever it appears to the chief medical officer of the state security hospital that a person committed under subsection (1)(d) is not likely to cause harm to other persons in a less restrictive hospital environment, the officer may transfer the person to any state hospital, subject to the provisions of subsection (3). At any time subsequent thereto during which such person is still committed to a state hospital, if the chief medical officer of that hospital finds that the person may be likely to cause harm or has caused harm, to others, such officer may transfer the person back to the state security hospital.
(b) Any person committed under subsection (1)(d) may be granted conditional release or discharge as an involuntary patient.
(3) Before transfer of a person from the state security hospital pursuant to subsection (2)(a) or conditional release or discharge of a person pursuant to subsection (2)(b), the chief medical officer of the state security hospital or the state hospital where the patient is under commitment shall give notice to the district court of the county from which the person was committed that transfer of the patient is proposed or that the patient is ready for proposed conditional release or discharge. Such notice shall include, but not be limited to: (a) Identification of the patient; (b) the course of treatment; (c) a current assessment of the defendant's mental illness; (d) recommendations for future treatment, if any; and (e) recommendations regarding conditional release or discharge, if any. Upon receiving notice, the district court shall order that a hearing be held on the proposed transfer, conditional release or discharge. The court shall give notice of the hearing to the state hospital or state security hospital where the patient is under commitment and to the district or county attorney of the county from which the person was originally ordered committed and shall order the involuntary patient to undergo a mental evaluation by a person designated by the court. A copy of all orders of the court shall be sent to the involuntary patient and the patient's attorney. The report of the court ordered mental evaluation shall be given to the district or county attorney, the involuntary patient and the patient's attorney at least five days prior to the hearing. The hearing shall be held within 30 days after the receipt by the court of the chief medical officer's notice. The involuntary patient shall remain in the state hospital or state security hospital where the patient is under commitment until the hearing on the proposed transfer, conditional release or discharge is to be held. At the hearing, the court shall receive all relevant evidence, including the written findings and recommendations of the chief medical officer of the state security hospital or the state hospital where the patient is under commitment, and shall determine whether the patient shall be transferred to a less restrictive hospital environment or whether the patient shall be conditionally released or discharged. The patient shall have the right to present evidence at such hearing and to cross-examine any witnesses called by the district or county attorney. At the conclusion of the hearing, if the court finds by clear and convincing evidence that the patient will not be likely to cause harm to self or others if transferred to a less restrictive hospital environment, the court shall order the patient transferred. If the court finds by clear and convincing evidence that the patient is not currently a mentally ill person, the court shall order the patient discharged or conditionally released otherwise, the court shall order the patient to remain in the state security hospital or state hospital where the patient is under commitment. If the court orders the conditional release of the patient in accordance with subsection (4), the court may order as an additional condition to the release that the patient continue to take prescribed medication and report as directed to a person licensed to practice medicine and surgery to determine whether or not the patient is taking the medication or that the patient continue to receive periodic psychiatric or psychological treatment.
(4) In order to ensure the safety and welfare of a patient who is to be conditionally released and the citizenry of the state, the court may allow the patient to remain in custody at a facility under the supervision of the secretary of social and rehabilitation services for a period of time not to exceed 30 days in order to permit sufficient time for the secretary to prepare recommendations to the court for a suitable reentry program for the patient. The reentry program shall be specifically designed to facilitate the return of the patient to the community as a functioning, self-supporting citizen, and may include appropriate supportive provisions for assistance in establishing residency, securing gainful employment, undergoing needed vocational rehabilitation, receiving marital and family counseling, and such other outpatient services that appear beneficial. If a patient who is to be conditionally released will be residing in a county other than the county where the district court that ordered the conditional release is located, the court shall transfer venue of the case to the district court of the other county and send a copy of all of the court's records of the proceedings to the other court. In all cases of conditional release the court shall: (a) Order that the patient be placed under the temporary supervision of district court probation and parole services, community treatment facility or any appropriate private agency; and (b) require as a condition precedent to the release that the patient agree in writing to waive extradition in the event a warrant is issued pursuant to K.S.A. 22-3428b and amendments thereto.
(5) At any time during the conditional release period, a conditionally released patient, through the patient's attorney, or the county or district attorney of the county in which the district court having venue is located may file a motion for modification of the conditions of release, and the court shall hold an evidentiary hearing on the motion within 15 days of its filing. The court shall give notice of the time for the hearing to the patient and the county or district attorney. If the court finds from the evidence at the hearing that the conditional provisions of release should be modified or vacated, it shall so order. If at any time during the transitional period the designated medical officer or supervisory personnel or the treatment facility informs the court that the patient is not satisfactorily complying with the provisions of the conditional release, the court, after a hearing for which notice has been given to the county or district attorney and the patient, may make orders: (a) For additional conditions of release designed to effect the ends of the reentry program, (b) requiring the county or district attorney to file a petition to determine whether the patient is a mentally ill person as provided in K.S.A. 59-2957 and amendments thereto, or (c) requiring that the patient be committed to the state security hospital or any state hospital. In cases where an application is ordered to be filed, the court shall proceed to hear and determine the application pursuant to the care and treatment act for mentally ill persons and that act shall apply to all subsequent proceedings. The costs of all proceedings, the mental evaluation and the reentry program authorized by this section shall be paid by the county from which the person was committed.
(6) In any case in which the defense that the defendant lacked the required mental state pursuant to K.S.A. 22-3220 and amendments thereto is relied on, the court shall instruct the jury on the substance of this section.
(7) As used in this section and K.S.A. 22-3428a and amendments thereto:
(a) "Likely to cause harm to self or others" means that the person is likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another's property, or evidenced by behavior causing, attempting or threatening such injury, abuse or neglect.
(b) "Mentally ill person" means any person who:
(A) Is suffering from a severe mental disorder to the extent that such person is in need of treatment; and
(B) is likely to cause harm to self or others.
(c) "Treatment facility" means any mental health center or clinic, psychiatric unit of a medical care facility, psychologist, physician or other institution or individual authorized or licensed by law to provide either inpatient or outpatient treatment to any patient.
History: L. 1970, ch. 129, § 22-3428; L. 1971, ch. 117, § 1; L. 1975, ch. 200, § 1; L. 1976, ch. 163, § 23; L. 1978, ch. 129, § 1; L. 1979, ch. 97, § 1; L. 1980, ch. 105, § 1; L. 1982, ch. 148, § 2; L. 1986, ch. 211, § 28; L. 1989, ch. 101, § 1; L. 1992, ch. 309, § 3; L. 1993, ch. 247, § 2; L. 1995, ch. 251, § 28; L. 1996, ch. 167, § 45; L. 1996, ch. 246, § 1; July 1.
(2) After the time in which a change of venue may be requested has elapsed, the court having venue shall set a date for the hearing, giving notice thereof to the county or district attorney of the county, the committed person and the person's counsel. If there is no counsel of record, the court shall appoint a counsel for the committed person. The committed person shall have the right to procure, at the person's own expense, a mental examination by a physician or licensed psychologist of the person's own choosing. If a committed person is financially unable to procure such an examination, the aid to indigent defendants provisions of article 45 of chapter 22 of the Kansas Statutes Annotated shall be applicable to that person. A committed person requesting a mental examination pursuant to K.S.A. 22-4508 and amendments thereto may request a physician or licensed psychologist of the person's own choosing and the court shall request the physician or licensed psychologist to provide an estimate of the cost of the examination. If the 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, the judge shall appoint the requested physician or licensed psychologist; otherwise, the court shall designate a physician or licensed psychologist to conduct the examination. Copies of each mental examination of the committed person shall be filed with the court at least five days prior to the hearing and shall be supplied to the county or district attorney receiving notice pursuant to this section and the committed person's counsel.
(3) At the hearing the committed person shall have the right to present evidence and cross-examine the witnesses. The court shall receive all relevant evidence, including the written findings and recommendations of the chief medical officer of the state security hospital or state hospital where the person is under commitment, and shall determine whether the committed person continues to be a mentally ill person. At the hearing the court may make any order that a court is empowered to make pursuant to subsections (3), (4) and (5) of K.S.A. 22-3428 and amendments thereto. If the court finds by clear and convincing evidence the committed person is not a mentally ill person, the court shall order the person discharged; otherwise, the person shall remain committed or be conditionally released.
(4) Costs of a hearing held pursuant to this section shall be assessed against and paid by the county in which the person was originally ordered committed.
History: L. 1978, ch. 127, § 1; L. 1979, ch. 97, § 2; L. 1980, ch. 105, § 2; L. 1982, ch. 148, § 3; L. 1986, ch. 211, § 29; L. 1986, ch. 299, § 3; L. 1986, ch. 134, § 1; L. 1989, ch. 101, § 2; L. 1993, ch. 247, § 3; L. 1995, ch. 251, § 29; Jan. 1, 1996.
History: L. 1980, ch. 105, § 3; July 1.
History: L. 1970, ch. 129, § 22-3429; L. 1992, ch. 309, § 4; L. 1993, ch. 291, § 195; L. 1994, ch. 291, § 63; July 1.
(b) No defendant committed to the state security hospital pursuant to this section upon conviction of a felony shall be transferred or released from such hospital except on recommendation of the staff of such hospital.
(c) The defendant may appeal from any order of commitment made pursuant to this section in the same manner and with like effect as if sentence to a jail, or to the custody of the secretary of corrections had been imposed.
History: L. 1970, ch. 129, § 22-3430; L. 1992, ch. 309, § 5; L. 1993, ch. 247, § 4; July 1.
(b) Upon receiving such notice, the district court shall order that a hearing be held. The court shall give notice of the hearing to: (1) The state hospital or state security hospital where the defendant is under commitment; (2) the district or county attorney of the county from which the defendant was originally committed; (3) the defendant; and (4) the defendant's attorney. The court shall inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney as provided in K.S.A. 22-4503 et seq. and amendments thereto. The hearing shall be held within 30 days after the receipt by the court of the chief medical officer's notice.
(c) At the hearing, the defendant shall be sentenced, committed, granted probation, assigned to a community correctional services program, as provided by K.S.A. 75-5291 and amendments thereto, or discharged as the court deems best under the circumstance. The time spent in a state or local institution pursuant to a commitment under K.S.A. 22-3430 and amendments thereto shall be credited against any sentence, confinement or imprisonment imposed on the defendant.
History: L. 1970, ch. 129, § 22-3431; L. 1971, ch. 114, § 8; L. 1986, ch. 123, § 22; L. 1993, ch. 247, § 5; L. 2000, ch. 182, § 7; May 25.
History: L. 1970, ch. 129, § 22-3432; L. 1975, ch. 201, § 1; July 1.
(1) The court determines that the time, content and circumstances of the statement provide sufficient indicia of reliability;
(2) no attorney for any party is present when the statement is made;
(3) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;
(4) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered;
(5) the statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child's statement and not made solely as a result of a leading or suggestive question;
(6) every voice on the recording is identified;
(7) the person conducting the interview of the child in the recording is present at the proceeding and is available to testify or be cross-examined by any party;
(8) each party to the proceeding is afforded an opportunity to view the recording before it is offered into evidence, and a copy of a written transcript is provided to the parties; and
(9) the child is available to testify.
(b) If a recording is admitted in evidence under this section, any party to the proceeding may call the child to testify and be cross-examined, either in the courtroom or as provided by K.S.A. 22-3434 and amendments thereto.
History: L. 1985, ch. 112, § 3; L. 1986, ch. 135, § 1; L. 1986, ch. 119, § 3; July 1.
(1) In a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding; or
(2) outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding if: (A) The recording is both visual and aural and is recorded on film or videotape or by other electronic means; (B) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered; (C) every voice on the recording is identified; and (D) each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom, and a copy of a written transcript is provided to the parties.
(b) The state must establish by clear and convincing evidence that to require the child who is the alleged victim to testify in open court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify. The court shall make such an individualized finding before the state is permitted to proceed under this section.
(c) At the taking of testimony under this section:
(1) Only the attorneys for the defendant, the state and the child, any person whose presence would contribute to the welfare and well-being of the child and persons necessary to operate the recording or closed-circuit equipment may be present in the room with the child during the child's testimony;
(2) only the attorneys may question the child;
(3) the persons operating the recording or closed-circuit equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during the child's testimony but does not permit the child to see or hear them; and
(4) the court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.
(d) If the testimony of a child is taken as provided by this section, the child shall not be compelled to testify in court during the proceeding.
(e) (1) Any objection by any party to the proceeding to a recording under subsection (a)(2) is inadmissible must be made by written motion filed with the court at least seven days before the commencement of the trial. An objection under this subsection shall specify the portion of the recording which is objectionable and the reasons for the objection. Failure to file an objection within the time provided by this subsection shall constitute waiver of the right to object to the admissibility of the recording unless the court, in its discretion, determines otherwise.
(2) The provisions of this subsection (d) shall not apply to any objection to admissibility for the reason that the recording has been materially altered.
History: L. 1985, ch. 112, § 4; L. 1986, ch. 135, § 2; L. 1986, ch. 119, § 4; L. 1990, ch. 110, § 1; July 1.
History: L. 1985, ch. 112, § 5; July 1.
(a) The prosecuting attorney, as defined in K.S.A. 22-2202, and amendments thereto, shall: (1) inform the victim or the victim's family before any dismissal or declining of prosecuting charges; (2) inform the victim or the victim's family of the nature of any proposed plea agreement; and (3) inform and give notice to the victim or the victim's family of the rights established in subsection (b);
(b) The victim of a crime or the victim's family have the right to be present at any hearing where a plea agreement is reviewed or accepted and the parties may submit written arguments to the court prior to the date of the hearing.
History: L. 1991, ch. 90, § 3; L. 2006, ch. 212, § 18; July 1.
(2) Upon the request of any law enforcement agency, such person as provided in subsection (1) performing the analysis shall prepare a certificate. Such person shall sign the certificate under oath and shall include in the certificate an attestation as to the result of the analysis. The presentation of this certificate to a court by any party to a proceeding shall be evidence that all of the requirements and provisions of this section have been complied with. This certificate shall be supported by a written declaration pursuant to K.S.A. 53-601 and amendments thereto or shall be sworn to before a notary public or other person empowered by law to take oaths and shall contain a statement establishing the following: The type of analysis performed; the result achieved; any conclusions reached based upon that result; that the subscriber is the person who performed the analysis and made the conclusions; the subscriber's training or experience to perform the analysis; the nature and condition of the equipment used; and the certification and foundation requirements for admissibility of breath test results, when appropriate. When properly executed, the certificate shall, subject to the provisions of subsection (3) and notwithstanding any other provision of law, be admissible evidence of the results of the forensic examination of the samples or evidence submitted for analysis and the court shall take judicial notice of the signature of the person performing the analysis and of the fact that such person is that person who performed the analysis.
(3) Whenever a party intends to proffer in a criminal or civil proceeding, a certificate executed pursuant to this section, notice of an intent to proffer that certificate and the reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least 20 days before the beginning of a hearing where the proffer will be used. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the grounds for the objection within 10 days upon receiving the adversary's notice of intent to proffer the certificate. Whenever a notice of objection is filed, admissibility of the certificate shall be determined not later than two days before the beginning of the trial. A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate. The time limitations set forth in this section may be extended upon a showing of good cause.
History: L. 1993, ch. 261, § 3; L. 1996, ch. 224, § 3; L. 2002, ch. 163, § 4; L. 2003, ch. 70, § 1; July 1.
History: L. 1993, ch. 261, § 5; July 1.
(b) For probation revocations which result in the defendant's imprisonment in the custody of the department of corrections, the court shall forward a signed copy of the journal entry of revocation to the Kansas sentencing commission within 30 days of final disposition.
(c) The court shall insure that information concerning dispositions for all other felony probation revocations based upon crimes committed on or after July 1, 1993, and for all class A and B misdemeanor crimes and assault as defined in K.S.A. 21-3408 and amendments thereto committed on or after July 1, 1993, is forwarded to the Kansas bureau of investigation central repository. Such information shall be transmitted on a form or in a format approved by the attorney general within 30 days of that final disposition.
History: L. 1996, ch. 258, § 8; July 1.