Kansas Code of Criminal Procedure

K.S.A. Chapter 22 - Article 34

Trials and Incidents Thereto

Current through end of 2017 legislative session

22-3401        Time of trial.

22-3402        Discharge of persons not brought promptly to trial.

22-3403        Method of trial of felony cases.

22-3404        Misdemeanor, cigarette or tobacco infraction and traffic infraction case; method of trial.

22-3405        Presence of defendant.

22-3406        Time to prepare for trial.

22-3407        Motion to discharge jury panel.

22-3408        Trial jurors.

22-3409        Summoning jurors in misdemeanor case.

22-3410        Challenges for cause.

22-3411a      Felony trials; number of jurors.

22-3412        Jury selection; peremptory challenges; swearing of jury; alternate or additional jurors.

22-3413        Juror's knowledge of material fact.

22-3414        Order of trial.

22-3415        Laws applicable to witnesses; immunity from prosecution or punishment.

22-3416        Prisoner as witness.

22-3417        Objections to rulings.

22-3418        View of place of crime.

22-3419        Motion for judgment of acquittal.

22-3420        Conduct of jury after submission.

22-3421        Verdict, procedure.

22-3422        Allocution.

22-3423        Mistrials.

22-3424        Judgment and sentence.

22-3425        Commitment for failure to pay fine and costs.

22-3426        Record of judgment; form and content of journal entry.

22-3426a      Revocation of probation; form and content of journal entry.

22-3427        Execution of sentence.

22-3428        Persons acquitted or verdict of not guilty and jury answers affirmative to special question; commitment to state security hospital; determination of whether person is a mentally ill person, notice and hearing; procedure for transfer, release...

22-3428a      Same; annual hearing on continued commitment; procedure, notice and standards.

22-3428b      Same; violation of conditions of release; return to custody.

22-3429        Mental examination, evaluation and report after conviction and prior to sentence; limit on commitment.

22-3430        Commitment to certain institutions as a result of a K.S.A. 22-3429 examination, when; standards; costs; appeal by defendant.

22-3431        Commitment to certain institutions as a result of mental examination and report after conviction and prior to sentence; disposition upon completion of treatment; notice and hearing.

22-3432        Information for secretary of corrections concerning person convicted.

22-3434        Videotape of testimony of child victim admissible in certain cases; limitations; standard of proof; objections, restrictions.

22-3435        Severability.

22-3436        Prosecuting attorney; information to victims.

22-3437        Forensic examinations; admissibility; certification.

22-3438        Severability.

22-3439        Felony convictions; information and forms to be forwarded to Kansas sentencing commission and Kansas bureau of investigation.


22-3401. Time of trial.

          All persons charged with crime shall be tried without unnecessary delay. Continuances may be granted to either party for good cause shown.

History: L. 1970, ch. 129, § 22-3401; July 1.

22-3402. Discharge of persons not brought promptly to trial.

          (a) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's 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 (e).

          (b) 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).

          (c) If any trial scheduled within the time limitation prescribed by subsection (a) or (b) 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.

          (d) After any trial date has been set within the time limitation prescribed by subsection (a), (b) or (c), 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 appeared in court after apprehension or surrender on such warrant. However, if the defendant was subject to the 180-day deadline prescribed by subsection (b) and more than 90 days of the original time limitation remain, then the original time limitation remains in effect

          (e) For those situations not otherwise covered by subsections (a), (b) or (c), the time for trial may be extended for any of the following reasons:

          (1) The defendant is incompetent to stand trial. If the defendant is subsequently found to be competent to stand trial, the trial shall be scheduled as soon as practicable and in any event within 90 days of such finding;

          (2) A proceeding to determine the defendant's competency to stand trial is pending. If the defendant is subsequently found to be competent to stand trial, the trial shall be scheduled as soon as practicable and in any event within 90 days of such

finding. However, if the defendant was subject to the 180-day deadline prescribed by subsection (b) and more than 90 days of the original time limitation remain, then the original time limitation remains in effect. The time that a decision is pending on competency shall never be counted against the state;

          (3) 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;

          (4) 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.

          (f) In the event a mistrial is declared, a motion for new trial is granted, 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, the date a new trial is ordered, or the date the mandate of the supreme court or court of appeals is filed in the district court.

          (g) If a defendant, or defendant’s attorney in consultation with the defendant, requests a delay and such delay is granted, the delay shall be charged to the defendant regardless of the reasons for making the request, unless there is prosecutorial misconduct related to such delay. If a delay is initially attributed to the defendant, but is subsequently charged to the state for any reason, such delay shall not be considered against the state under subsections (a), (b) or (c) and shall not be used as a ground for dismissing a case or for reversing a conviction unless not considering such delay would result in a violation of the constitutional right to a speedy trial or there is prosecutorial misconduct related to such delay.

          (h) When a scheduled trial is scheduled within the period allowed by subsections (a), (b) or (c) and is delayed because a party has made or filed a motion, or because the court raises a concern on its own, the time elapsing from the date of the making or filing of the motion, or the court’s raising a concern, until the matter is resolved by court order shall not be considered when determining if a violation under subsections (a), (b) or (c) has occurred. If the resolution of such motion or concern by court order occurs at a time when less than 30 days remains under the provisions of subsections (a), (b) or (c), the time in which the defendant shall be brought to trial is extended 30 days from the date of the court order.

          (i) If the state requests and is granted a delay for any reason provided in this statute, the time elapsing because of the order granting the delay shall not be subsequently counted against the state if an appellate court later determines that the district court erred by granting the state’s request unless not considering such delay would result in a violation of the constitutional right to a speedy trial or there is prosecutorial misconduct related to such delay.

History: L. 1970, ch. 129, § 22-3402; L. 1976, ch. 163, § 18; L. 2004, ch. 47, § 1; L. 2012, ch. 157, § 4; July 1.

22-3403. Method of trial of felony cases.

          (1) The defendant and prosecuting attorney, with the consent of the court, may submit the trial of any felony to the court. All other trials of felony cases shall be by jury.

          (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.

22-3404. Misdemeanor, cigarette or tobacco infraction and traffic infraction case; method of trial.

          (1) The trial of misdemeanor cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant's counsel. The time requirement provided in this subsection regarding when a jury trial shall be requested may be waived in the discretion of the court upon a finding that imposing such time requirement would cause undue hardship or prejudice to the defendant.

          (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.

22-3405. Presence of defendant.

          (1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes.

          (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.

22-3406. Time to prepare for trial.

          After arraignment, the defendant shall be entitled to a reasonable time to prepare for trial.

History: L. 1970, ch. 129, § 22-3406; July 1.

22-3407. Motion to discharge jury panel.

          (1) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel. The motion shall be made at least five days prior to the date set for trial if the names and addresses of the panel members and the grounds for objection thereto are known to the parties or can be learned by an inspection of the records of the clerk of the district court at that time; in other cases the motion must be made prior to the time when the jury is sworn to try the case. For good cause shown, the court may entertain the motion at any time thereafter.

          (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.

22-3408. Trial jurors.

          (1) When drawn, a list of prospective jurors shall be filed in the office of the clerk of the court and shall be a public record.

          (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 the defendant's attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, the defendant's 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; L. 2017, ch. 73, § 1; July 1.

22-3409. Summoning jurors in misdemeanor case.

          When a jury trial is demanded, as provided by law, for misdemeanor cases, the judge shall summon not less than 12 prospective jurors from the source and in the manner provided for the summoning of other petit jurors in the district court in the county.

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.

22-3410. Challenges for cause.

          (1) Each party may challenge any prospective juror for cause. Challenges for cause shall be tried by the court.

          (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.

22-3411a. Felony trials; number of jurors.

          In all felony trials, upon the request of either the prosecution or the defendant, the court shall cause enough jurors to be called, examined, and passed for cause before any peremptory challenges are required, so that there will remain sufficient jurors, after the number of peremptory challenges allowed by law for the case on trial shall have been exhausted, to enable the court to cause 12 jurors to be sworn to try the case.

History: L. 1981, ch. 155, § 2; July 1.

22-3412. Jury selection; peremptory challenges; swearing of jury; alternate or additional jurors.

          (a) (1) For crimes committed before July 1, 1993, peremptory challenges shall be allowed as follows:

          (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, a nondrug felony ranked at severity level 1, or a drug felony ranked at severity level 1 or 2, 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 3 or 4, 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 5 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) 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. Such jurors may be selected at the same time as the regular jurors or after the jury has been empaneled and sworn, in the judge’s discretion. 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; L. 2009, ch. 61, § 2; L. 2012, ch. 150, § 41; July 1.

22-3413. Juror's knowledge of material fact.

          If a juror has personal knowledge of any fact material to the case, he must inform the court and shall not speak of such fact to other jurors out of court. If a juror has personal knowledge of a fact material to the case, gained from sources other than evidence presented at trial and shall speak of such fact to other jurors without the knowledge of the court or the defendant, he may be adjudged in contempt and punished accordingly.

History: L. 1970, ch. 129, § 22-3413; July 1.

22-3414. Order of trial.

          (1) The prosecuting attorney shall state the case and offer evidence in support of the prosecution. The defendant may make an opening statement prior to the prosecution's offer of evidence, or may make such statement and offer evidence in support of such statement after the prosecution rests.

          (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 (b) of K.S.A. 21-5109, 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; L. 2011, ch. 30, § 127, July 1.

22-3415. Laws applicable to witnesses; immunity from prosecution or punishment.

          (a) The provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of the parties, shall extend to criminal cases so far as they are in their nature applicable, unless other provision is made by statute.

          (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. 21-5903 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; L. 2011, ch. 30, § 128, July 1.

22-3416. Prisoner as witness.

          No prisoner in the custody of the secretary of corrections shall be required to attend as a witness in any criminal action or proceeding except on order of the court before whom the prosecution is pending and under such terms as the court may prescribe.

History: L. 1970, ch. 129, § 22-3416; L. 2012, ch. 51, § 1; July 1.

22-3417. Objections to rulings.

          Formal exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

History: L. 1970, ch. 129, § 22-3417; July 1.

22-3418. View of place of crime.

          Whenever in the opinion of the court it is proper for the jurors to have a view of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. They may be accompanied by the defendant, his counsel and the prosecuting attorney. While the jurors are thus absent, no person other than the officer and the person appointed to show them the place shall speak to them on any subject connected with the trial. The officer or person appointed to show them the place shall speak to the jurors only to the extent necessary to conduct them to and identify the place or thing in question.

History: L. 1970, ch. 129, § 22-3418; July 1.

22-3419. Motion for judgment of acquittal.

          (1) The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes charged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without having reserved the right.

          (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.

22-3420. Conduct of jury after submission.

          (1) When the case is finally submitted to the jury, they shall retire for deliberation. They must be kept together in some convenient place under charge of a duly sworn officer until they agree upon a verdict, or be discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night, and at their meals. The officer having them under his charge shall not allow any communications to be made to them, or make any himself, unless by order of the court; and before their verdict is rendered he shall not communicate to any person the state of their deliberations, or the verdict agreed upon. No person other than members of the jury shall be present in the jury room during deliberations.

          (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.

22-3421. Verdict, procedure.

          The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.

History: L. 1970, ch. 129, § 22-3421; L. 1984, ch. 112, § 23; July 1.

22-3422. Allocution.

          When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court and asked whether he has any legal cause to show why judgment should not be rendered. If none is shown the court shall pronounce judgment against the defendant.

History: L. 1970, ch. 129, § 22-3422; July 1.

22-3423. Mistrials.

          (1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:

          (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.

22-3424. Judgment and sentence.

          (a) The judgment shall be rendered and sentence imposed in open court.

          (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) (1) 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, and amendments thereto.

          (2) (A) The court shall order a person convicted of human trafficking or aggravated human trafficking, K.S.A. 21-3446 or 21-3447, prior to their repeal, or K.S.A. 2014 Supp. 21-5426, and amendments thereto, or commercial sexual exploitation of a child, K.S.A. 2014 Supp. 21-6422, and amendments thereto, to pay restitution to the victim of the offense for:

          (i) Expenses incurred or reasonably certain to be incurred by the victim as a result of the offense, including reasonable attorney fees and costs; and

          (ii) an amount equal to three times the greatest of the following, with no reduction for expenses the defendant incurred to maintain the victim:

(a) The gross income to the defendant for, or the value to the defendant of, the victim’s labor or services or sexual activity;

(b) the amount the defendant contracted to pay the victim; or

(c) the value of the victim’s labor or services or sexual activity, calculated under the minimum wage and overtime provisions of the federal fair labor standards act, 29 U.S.C. § 201 et seq., or under K.S.A. 44-1203, and amendments thereto, whichever is higher, even if the provisions do not apply to the victim’s labor or services or sexual activity.

          (B) The court shall order restitution under subsection (d)(2) even if the victim is unavailable to accept payment of restitution.

          (C) If the victim does not claim restitution ordered under subsection (d)(2) for five years after entry of the order, the restitution must be paid to the human trafficking victim assistance fund created by K.S.A. 2014 Supp. 75-758, and amendments thereto, to help victims.

          (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; L. 2015, ch. 94 § 4; July 1.

22-3425. Commitment for failure to pay fine and costs.

          (1) When a defendant is adjudged to pay a fine and costs, the court may order him to be committed to the county jail until such fine and costs are paid or may make an order providing for the payment of such fines and costs in installments.

          (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.

22-3426. Record of judgment; form and content of journal entry.

          (a) When judgment is rendered or sentence of imprisonment is imposed, upon a plea or verdict of guilty, a record thereof shall be made upon the journal of the court, reflecting, if applicable, conviction or other judgment, the sentence if imposed, and the commitment, which record among other things shall contain a statement of the crime charged, and under what statute; the plea or verdict and the judgment rendered or sentence imposed, and under what statute, and a statement that the defendant was duly represented by counsel naming such counsel, or a statement that the defendant has stated on the record or in writing that the defendant did not want representation of counsel.

          (b) If defendant is sentenced to the custody of the secretary of corrections the journal entry shall record in a judgment form, if used, all the information required under K.S.A. 21-6711 and amendments thereto unless such section is not applicable. It shall be the duty of the court personally to examine the journal entry and to sign the same.

          (d) For felony convictions for crimes committed on or after July 1, 1993, in addition to the provisions of subsections (a) through (c), the journal entry shall contain the following information:

          (1) Court case number;

          (2) Kansas bureau of investigation number;

          (3) case transaction 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 for which the defendant is convicted;

          (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; L. 2008, ch. 41, § 1; L. 2011, ch. 30, § 129, July 1.

22-3426a. Revocation of probation; form and content of journal entry.

          (a) For crimes committed on or after July 1, 1993, when a convicted person is revoked for a probation violation, a record thereof shall be made upon the journal of the court. Such journal entry shall include:

          (1) Court case number;

          (2) Kansas bureau of investigation number;

          (3) case transaction 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; L. 2008, ch. 41, § 2; July 1.

22-3427. Execution of sentence.

          (a) When any person has been convicted of a violation of any law of the state of Kansas and has been sentenced to confinement, it shall be the duty of the sheriff of the county, upon receipt of a certified copy of the journal entry of judgment, judgment form showing conviction, sentence, and commitment, or an order of commitment supported by a recorded judgment of sentence, to cause such person to be confined in accordance with the sentence.

          (b) 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.

          (c) The court shall forward a copy of all complaints, supporting affidavits, presentence investigation reports and other diagnostic reports on the offender received by the district court, including any reports received from the state security hospital, to the officer having the offender in custody for delivery with the offender to the correctional institution.

History: L. 1970, ch. 129, § 22-3427; L. 1980, ch. 104, § 7; L. 2010, ch. 136, § 306; L. 2010, ch. 136, § 306, L. 2011, ch. 30, § 84, L. 2012, ch. 28, § 1; July 1.

22-3428. Persons acquitted or verdict of not guilty and jury answers affirmative to special question; commitment to state security hospital; determination of whether person is a mentally ill person, notice and hearing; procedure for transfer, release or discharge, standards, notice and hearing.

          (1) (a) When a defendant is acquitted and the jury answers in the affirmative to the special question asked pursuant to K.S.A. 22-3221 and amendments thereto, the defendant shall be committed to the state security hospital for safekeeping and treatment and the court shall notify the secretary of corrections for the purpose of providing victim notification.. A finding of not guilty and the jury answering in the affirmative to the special question asked pursuant to K.S.A. 22-3221 and amendments thereto, shall be prima facie evidence that the acquitted defendant is presently likely to cause harm to self or others.

          (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, the defendant's attorney and the secretary of corrections for the purpose of providing victim notification. 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). The court shall notify the secretary of corrections of the outcome of the hearing for the purpose of providing victim notification.

          (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, to the district or county attorney of the county from which the person was originally ordered committed and the secretary of corrections for the purpose of providing victim

notification. The court 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 seven 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. The court shall notify the secretary of corrections of the outcome of the hearing for the purpose of providing victim notification.

          (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 45 days in order to permit sufficient time for the secretary to prepare recommendations to the court for a suitable reentry program for the patient and allow adequate time for the secretary of corrections to provide victim notification. 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 14 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. 2001 Supp. 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 a petition is ordered to be filed, the court shall proceed to hear and determine the petition pursuant to the care and treatment act for mentally ill persons and that act shall apply to all subsequent proceedings. If a patient is committed to any state hospital pursuant to this act the secretary of social and rehabilitation services shall notify the secretary of corrections for the purpose of providing victim notification. 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; L. 2010, ch. 61, § 4; L. 2010, ch. 135, § 22; L. 2011, ch. 91, § 17, July 1.

22-3428a. Same; annual hearing on continued commitment; procedure, notice and standards.

          (1) Any person found not guilty, pursuant to K.S.A. 22-3220 and 22-3221, and amendments thereto, who remains in the state security hospital or a state hospital for over one year pursuant to a commitment under K.S.A. 22-3428 and amendments thereto shall be entitled annually to request a hearing to determine whether or not the person continues to be a mentally ill person. The request shall be made in writing to the district court of the county where the person is hospitalized and shall be signed by the committed person or the person's counsel. When the request is filed, the court shall give notice of the request to: (a) The county or district attorney of the county in which the person was originally ordered committed, and (b) the chief medical officer of the state security hospital or state hospital where the person is committed. The chief medical officer receiving the notice, or the officer's designee, shall conduct a mental examination of the person and shall send to the district court of the county where the person is hospitalized and to the county or district attorney of the county in which the person was originally ordered committed a report of the examination within 21 days from the date when notice from the court was received. Within 14 days after receiving the report of the examination, the county or district attorney receiving it may file a motion with the district court that gave the notice, requesting the court to change the venue of the hearing to the district court of the county in which the person was originally committed, or the court that gave the notice on its own motion may change the venue of the hearing to the district court of the county in which the person was originally committed. Upon receipt of that motion and the report of the mental examination or upon the court's own motion, the court shall transfer the hearing to the district court specified in the motion and send a copy of the court's records of the proceedings to that court.

          (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, the person's counsel and the secretary of corrections for the purpose of providing victim notification. 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 seven 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. The court shall notify the secretary of corrections of the outcome of the hearing for the purpose of providing victim notification.

          (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; L. 2010, ch. 61, § 5; L. 2010, ch. 135, § 23; L. 2011, ch. 91, § 18, July 1.

22-3428b. Same; violation of conditions of release; return to custody.

          Any person who violates an order of conditional release entered pursuant to K.S.A. 22-3428 or 22-3428a, and any amendments to such sections, shall be subject to contempt of court proceedings. Upon a finding of probable cause to believe that a person has violated the conditions of any such order the district court may issue a warrant directing any law enforcement officer to take such person into custody and return the defendant to the custody of the court or to any facility designated by the court.

History: L. 1980, ch. 105, § 3; July 1.

22-3429. Mental examination, evaluation and report after conviction and prior to sentence; limit on commitment.

          After conviction and prior to sentence and as part of the presentence investigation authorized by K.S.A. 21-6703 and amendments thereto or for crimes committed on or after July 1, 1993, a presentence investigation report as provided in K.S.A. 21-6813 and amendments thereto, the trial judge may order the defendant committed for mental examination, evaluation and report. If the defendant is convicted of a felony, the commitment shall be to the state security hospital or any suitable local mental health facility. If the defendant is convicted of a misdemeanor, the commitment shall be to a state hospital or any suitable local mental health facility. If adequate private facilities are available and if the defendant is willing to assume the expense thereof, commitment may be to a private hospital. A report of the examination and evaluation shall be furnished to the judge and shall be made available to the prosecuting attorney and counsel for the defendant. A defendant may not be detained for more than 120 days under a commitment made under this section.

History: L. 1970, ch. 129, § 22-3429; L. 1992, ch. 309, § 4; L. 1993, ch. 291, § 195; L. 1994, ch. 291, § 63; L. 2011, ch. 30, § 130, July 1.

22-3430. Commitment to certain institutions as a result of a K.S.A. 22-3429 examination, when; standards; costs; appeal by defendant.

          (a) If the report of the examination authorized by K.S.A. 22-3429 and amendments thereto shows that the defendant is in need of psychiatric care and treatment, that such treatment may materially aid in the defendant's rehabilitation and that the defendant and society are not likely to be endangered by permitting the defendant to receive such psychiatric care and treatment, in lieu of confinement or imprisonment, the trial judge shall have power to commit such defendant to: (1) The state security hospital or any county institution provided for the reception, care, treatment and maintenance of mentally ill persons, if the defendant is convicted of a felony; or (2) any state or county institution provided for the reception, care, treatment and maintenance of mentally ill persons, if the defendant is convicted of a misdemeanor. The court may direct that the defendant be detained in such hospital or institution until further order of the court or until the defendant is discharged under K.S.A. 22-3431 and amendments thereto. The court shall notify the secretary of corrections of the outcome of the hearing for the purpose of providing victim notification. No period of detention under this section shall exceed the maximum term provided by law for the crime of which the defendant has been convicted. The cost of care and treatment provided by a state institution shall be assessed in accordance with K.S.A. 59-2006 and amendments thereto.

          (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; L. 2010, ch. 61, § 6; July 1.

22-3431. Commitment to certain institutions as a result of mental examination and report after conviction and prior to sentence; disposition upon completion of treatment; notice and hearing.

          (a) Whenever it appears to the chief medical officer of the institution to which a defendant has been committed under K.S.A. 22-3430 and amendments thereto, that the defendant will not be improved by further detention in such institution, the chief medical officer shall give written notice thereof to the district court where the defendant was convicted. Such notice shall include, but not be limited to: (1) Identification of the patient; (2) the course of treatment; (3) a current assessment of the defendant's psychiatric condition; (4) recommendations for future treatment, if any; and (5) recommendations regarding discharge, if any.

          (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; (4) the defendant's attorney and (5) the secretary of corrections for the purpose of providing victim notification. 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 court shall notify the secretary of corrections of the outcome of the hearing for the purpose of providing victim notification. 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; L. 2010, ch. 61, § 7; July 1.

22-3432. Information for secretary of corrections concerning person convicted.

          (a) It shall be the duty of the county or district attorney of the county in which a person has been convicted of a felony and sentenced to imprisonment to furnish to the secretary of corrections information pertaining to any special facts and circumstances concerning the commission of the offense or the offender that cannot be obtained from records provided to the secretarypursuant to K.S.A. 22-3427, and amendments thereto.

          (b) If applicable, such information shall be set forth on forms provided by the secretary and shall be submitted at the time such inmate is committed. Such information shall be forwarded by the secretary to the correctional institution receiving such inmate.

History: L. 1970, ch. 129, § 22-3432; L. 1975, ch. 201, § 1; L. 2012, ch. 28, § 2; July 1.

22-3434. Videotape of testimony of child victim admissible in certain cases; limitations; standard of proof; objections, restrictions.

          (a) On motion of the attorney for any party to a criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, subject to the conditions of subsection (b), the court may order that the testimony of the child be taken:

          (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.

22-3435. Severability.

          If any provisions of this act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application and, to this end, the provisions of this act are severable.

History: L. 1985, ch. 112, § 5; July 1.

22-3436. Prosecuting attorney; information to victims.

          This section applies If a defendant is charged with a crime pursuant to K.S.A. 21-5401 through 21-5609, K.S.A. 21-6104, 21-6325, 21-6326 or K.S.A. 21-6419 through 21-6422, and amendments thereto, the prosecuting attorney shall:

          (1) inform the victim or the victim’s family: (a) before any dismissal or declining of prosecuting charges; and (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; L. 2011, ch. 30, § 131, L. 2015, ch. 94, § 5; July 1.

22-3437. Forensic examinations; admissibility; certification.

          (1) In any hearing or trial, a report concerning forensic examinations and certificate of forensic examination executed pursuant to this section shall be admissible in evidence if the report and certificate are prepared and attested by a criminalist or other employee of the Kansas bureau of investigation, Kansas highway patrol, Johnson County sheriff's laboratory, Sedgwick County regional forensic science center, or any laboratory of the federal bureau of investigation, federal postal inspection service, federal bureau of alcohol, tobacco and firearms or federal drug enforcement administration. If the examination involves a breath test for alcohol content, the report must also be admissible pursuant to K.S.A. 8-1001, and amendments thereto, and be conducted by a law enforcement officer or other person who is certified by the department of health and environment as a breath test operator as provided by K.S.A. 65-1,107 et seq. and amendments thereto.

          (2) Upon the request of any law enforcement agency, such person as provided in paragraph (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 paragraph (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 21 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 14 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.

          (b) (1) In any hearing or trial where there is a report concerning forensic examinations from a person as provided in paragraph (1) of subsection (a), district and municipal courts may, upon request of either party, use two-way interactive video technology, including internet-based videoconferencing, to take testimony from that person if the testimony is in relation to the report.

          (2) The use of any two-way interactive video technology must be in accordance with any requirements and guidelines established by the office of judicial administration, and all proceedings at which such technology is used in a district court must be recorded verbatim by the court.

History: L. 1993, ch. 261, § 3; L. 1996, ch. 224, § 3; L. 2002, ch. 163, § 4; L. 2003, ch. 70, § 1; L. 2008, ch. 170, § 5; L. 2010, ch. 90, § 2; April 15; L. 2010, ch. 135, § 24; L. 2011, ch. 91, § 19, L. 2011, ch. 2, § 1, L. 2012, ch. 166, § 5; July 1.

22-3438. Severability.

          If any provision of this act or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application. To this end the provisions of this act are severable.

History: L. 1993, ch. 261, § 5; July 1.

22-3439. Felony convictions; information and forms to be forwarded to Kansas sentencing commission and Kansas bureau of investigation.

          (a) For all felony convictions for offenses committed on or after July 1, 1993, the court shall forward a signed copy of the journal entry, attached together with the presentence investigation report as provided by K.S.A. 21-6813 and amendments thereto, to the Kansas sentencing commission within 30 days after sentencing.

          (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 prior to its repeal, or subsection (a) of K.S.A. 21-5412,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; L. 2011, ch. 30, § 132, July 1.