IS A DEFENDANT ENTITLED TO A RECORD OF THE PRELIMINARY HEARING BEFORE TRIAL?
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. Kelley, 498 P.2d 87 (Kan. 1972).
This case answers the following question:
Is a defendant entitled to a record of the preliminary hearing before trial?
The issue in this case is whether there is a record of the preliminary hearing. Any request by defendant for a transcript of the preliminary hearing should be made far enough in advance of trial to allow reasonable amount of time within which to transcribe notes and to avoid necessity of suspending trial pending production of such a transcript.
In this case, a 14-year-old girl and five males from Haysville were in the parking lot of a tavern. One of the males went into the bar to see a friend. The group outside was then surrounded by a group of five men from Wichita, including Kelley. The Wichita group forcibly commandeered the Haysville vehicle and drove it and their own car to a sparsely populated area outside of the city. One of the Haysville boys jumped out of the car when it was leaving the tavern. The Wichita group attempted to confine two of the Haysville boys to an incomplete stone house in a nearby field. The men then used a knife and tried to force the girl and remaining boy to have sex. The boy refused, and the Wichita group knocked him unconscious by hitting him in the head with a board. Kelley then removed the girl’s clothing and demanded sex. The girl refused, stating that she was menstruating and wearing a tampax. Kelley then forcibly removed the tampax and he and another attempted to have sex with her. It was then discovered that the two boys had escaped, so the Wichita group forced the girl back into the car. En route to a vacant lot, Kelley raped the girl. Then he and another further sexually abused the girl in the vacant lot. Afterwards, they left the girl laying in the lot. Kelley was convicted of second degree kidnapping of two of the Haysville boys and of first degree kidnapping and rape of the girl. Kelley appealed, asserting that the trial court erred in denying his request for a transcript of his preliminary hearing.
Any request by defendant for a transcript of the preliminary hearing should be made far enough in advance of trial to allow reasonable amount of time within which to transcribe notes and to avoid necessity of suspending trial pending production of such a transcript. The Kansas state legislature has authorized both parties of a case to have the record of proceedings of a preliminary hearing prepared at his or her own expense. In cases where a party is too poor to be able to afford a transcription of the record, it is considered if the transcription can be done at state expense. This decision of whether the transcription will be done at state expense is based on the necessity of the transcript for the poor person to present his cause adequately. In this case, the court found it was not necessary for the state to provide a transcript for the defendant since the defendant was represented by the same counsel at the preliminary hearing and the attorney acknowledged that he remembered the testimony from the preliminary hearing. Further, the defendant had full access to the reporter’s notes as needed, which the court found was a fair and adequate substitute to a transcript.
The Supreme Court of Kansas affirmed the decision of the lower court in denying the request of the defendant for a transcript of the preliminary hearing. The court found that the trial court did not err in concluding that a transcript was not necessary for the defendant to adequately present his defense.