CAN THE STATE INTENTIONALLY WAIT BEFORE LISTING ADDITIONAL WITNESSES ON THE COMPLAINT?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Costa, 613 P.2d 1359 (Kan. 1980).

This case addresses the following issue:

Can the State intentionally wait before listing additional witnesses on the complaint?

This case explores the issue of whether the State can intentionally wait before listing additional witnesses on the complaint. In the present case, the court found that it was not an error when the prosecutor failed to list names of all known witnesses on the original complaint; however, the Supreme Court will not condone surprise caused by intentional withholding of name of witness as a part of prosecution’s trial strategy. Id. at 1366-67.

The defendant, a truck driver, was charged with felony murder, attempted kidnapping, and attempted rape of a young female at a rest stop. Id. at 1362. Witnesses saw the back wheels of the defendant’s truck pass directly over the female’s body. Id. at 1363. When the witnesses were able to reach the body, the female’s hands were tied behind her back and it appeared that she had been sexually assaulted. Id. The witnesses contacted the defendant over the radio and the defendant denied any wrongdoing and did not return to the rest area. Id. The defendant was arrested 30 minutes later by a State Trooper. Id. The trial court found the defendant guilty on all three counts. Id. at 1364.

The defendant said the trial court committed error in allowing late listing of witnesses on the complaint and the information. Id. at 1366. Initially, no witnesses were listed on the complaint. Id. However, a few weeks later, the State filed a modified complaint listing nineteen witnesses and the trial court accepted the modified complaint. Id. Eleven days later, the State filed its information listing 75 witnesses. Id. According to a Kansas statute, “… said attorney may endorse thereon names of other witnesses as may afterward become known to said attorney, at such times as the court may be rule or otherwise prescribe.” Id. Further, the court noted that the listing of additional witnesses on a complaint was a matter of judicial discretion. Id. Additionally, the test of the exercise of that discretion was whether or not the rights of the defendant were unfairly prejudiced by the endorsement. Id.

According to the court, the purpose of the endorsement/listing requirement was to prevent surprise to the defendant and to give him an opportunity to interview and examine the witnesses for the prosecution in advance of trial. Id. However, it was not error when the prosecutor failed to list the names of all known witnesses on the original complaint. Id. Nonetheless, the court noted that it bears repeating that the court will not tolerate surprise caused by the intentional withholding of the name of a witness as a part of the prosecution’s trial strategy. Id. at 1366-67.

In sum, the court stated that absent proof of prejudice to the defendant’s rights, the court could not say the trial court abused the exercise of its power of discretion in permitting the late listing of the witnesses. Id. at 1367.