A STEP BY STEP GUIDE TO A CRIMINAL CASE
If you or a loved one has been charged with a crime in Johnson County or one of the Municipal Courts in Johnson County you probably have a bunch of questions. This guide will walk you through the criminal defense process from start to finish. This is a general guide, and it will answer general questions it is not meant to serve as a substitute for an experienced criminal defense lawyer. It is always best when you are charged with a crime or think that criminal charges may be coming, to sit down with an a criminal defense lawyer and discuss your situation in depth.
The criminal defense lawyers at Roth Davies, LLC have created this guide because we want you to understand more about the system and where you may fall within that system. Also, as explained in many of the pages below, processes and procedures can be different depending on what level of crime you are charged with and what court you are in. There are different procedures for a misdemeanor case than a felony case and different procedures for municipal cases than state court cases. Many of these differences are highlighted and explained in this guide, however, the guide would be too large if every detail of each process was explained. If you are charged with a crime and need help, read this guide and give our office a call for a free consultation.
QUICK GUIDE: ARREST, JAIL, AND THE COURT PROCESS
What happens after you're arrested?
It depends on where you’re charged, what crime you are charged with, and whether it is a misdemeanor or a felony.
On a misdemeanor case, if you’re in District court, the first thing that’s going to happen is you're going to jail and will be brought up in-front of a judge to set bond this will happen relatively quickly, usually within 48 hours.
At that first appearance, not a lot is going to happen. The judge is going to make sure that you know what you are charged with. You will be given a bond amount and conditions. If you have some sort of a problem with bond, perhaps there is a condition that is unwarranted or unfair, this is the time that you can ask the judge to modify the problematic bond condition. With misdemeanors, first appearance is also the time you’re going to be arraigned. Arraignment is the formal process of asking you how you plead to the charges. After that, you’re going to have another scheduled appearance, which is called a second appearance, status or scheduling docket, or a no-go docket. This next setting is kind of an arbitrary court date to make sure your case keeps moving.
What happens after first appearance/arraignment?
Your case is going to get set over to a scheduling docket. A scheduling or a no-go docket may happen two or three times, depending on what you’re doing with your case. If you did not have a lawyer at your first appearance, you will be set over for another hearing to give you time to hire an attorney and then appear with that attorney. If you need additional time to get money to hire a lawyer, you’re going to have to keep going in and requesting another continuance to hire a lawyer. Once you have a lawyer, your case is really going to start.
The criminal defense lawyer you hire will begin working on your case immediately. That lawyer will request discovery. Discovery is essentially anything in the police and prosecutor's file, including police reports, photos, videos, witness statements, or other documents and materials which they are going to use against you in your case. You and the attorney will go over all of the discovery together. Then you’ll have a good idea whether the State can prove their case or not and you’ll start working on a defense plan. After you develop your plan for attacking the case, a lot of different things can happen.
What happens after you’ve obtained discovery?
It depends on the evidence in your case and your case strategy. You may have a motion hearing to argue specific issues before the case goes to trial. Common motions that can be filed include motions to compel the disclosure of discovery or evidence that has not been provided, motions to suppress certain evidence, motions on the admissibility of your own statements against you, and so on. During this, "meat and potatoes" part of the case, your lawyer is also strategically communicating with the prosecutor to see if they are willing to dismiss the case or work out some sort of deal to mitigate your risks and/or address your biggest concerns. All this time, you and your lawyer continue going to your scheduled court dates.
At any time during all these court dates, the case can stop being litigated because you come to a plea agreement that you’re happy with. If that happens, then you will just schedule a plea date. On a misdemeanor case, you will generally do sentencing on that same day and your case will be over. For a felony case, sentencing will have to be scheduled out several weeks after the plea hearing.
If you can’t get a plea worked out during this time or the case doesn’t get dismissed, that’s when you will end up going to trial.
What happens if your case is going to trial?
Before trial, you have a pretrial conference in which the State and your lawyer are trying to hash out all the details of what’s going to happen at trial. Any file pretrial motions will need to be heard, both sides will submit jury instructions, and the Court will take up other preliminary and logistical matters. Eventually you’ll have your actual day in court. Your trial in court is going to be either a jury trial or a bench trial.
At a jury trial, part of the first day will be the process of jury selection, also known as “Voir Dire.” This is where your attorney works to make sure you get the right jury selected. Following jury selection, the attorneys are going to do their opening statements. Then both sides get to put on their "case in chief." The State is always going to go first in presenting evidence. But during their case in chief, your lawyer get the opportunity to cross-examine all of the State's witnesses. Once the State rests their case, your lawyer will present any evidence that helps your case. At the close of all evidence, the lawyers will proceed to make closing arguments. At this point, in the case of a bench trial, a judge will render a verdict, guilty or not guilty. Sometimes, a judge may take some time (minutes or even days) to take the case under advisement, before coming back to render the verdict.
In the case of a jury trial, the the judge will read jury instructions, submit the case to the jury, and the jury will retire from the courtroom to deliberate. Then you wait until they are done. The jury deliberates until they have a unanimous verdict of guilty or not guilty on each count. Then you are called back to the courtroom for the jury to announce the verdict. In the rare event they are deadlocked and cannot reach a unanimous verdict, a mistrial is declared.
What happens after trial?
If you receive a verdict of not guilty, you are acquitted. That means your case is done and you're free to go. If you are found guilty, that means you are convicted. You will then proceed to sentencing where you will receive your punishment. Generally, if the convictions are for misdemeanors, you proceed to sentencing right away.
Do Felony cases have a different process?
The process is similar as far as felonies go, there are just a few added steps. The biggest difference is that when you are charged with a felony, you are entitled to a preliminary hearing, also called a preliminary examination, before your case can be set for trial.
A preliminary examination is essentially a mini-trial in which the State has a burden of proving probable cause. That is a very low standard of proof where the State must show there is SOME evidence that a crime was committed in their jurisdiction and that you committed it. Probable cause is an easy burden for the State to meet. These hearings are a screening tool to make sure the cases that have absolutely no business in court go away sooner rather than later.
The other big difference for felony cases comes at sentencing. If you are convicted of a felony, either by plea or at trial, your case cannot proceed to sentencing immediately. There are additional steps before you can be sentenced, so the case will be set over several weeks or even a few months. During that time, the court will prepare a presentence investigation report (PSI), which is basically a criminal history report. They also have to do an LSI-R which is a way of evaluating a person’s amenability to being on probation and what level of supervision that person should be on. Any victims of the case are also notified of the sentencing and are given a chance to appear to speak, submit a written statement, or submit a request for restitution if they feel money is owed to them.
Is Municipal Court different than State Court?
When you move into the realm of Municipal Court, the process really varies quite a bit depending on the court. For example, in most municipal courts you don't get arrested and put in jail for a municipal offense. Instead you get issued a ticket and on that ticket is a date to appear in court in the future. In the District Court, on any felony appearance and for most misdemeanors, you are required to be there. In the Municipal Court, most of the time you’re not required to be at court, as long as you have a lawyer hired that shows up to court for you. While going to court for you, your lawyer is going to be working the case and will be updating you afterwards. Your lawyer will tell you if and when you need to be in Municipal Court.
At a Municipal Court you don't have some of the same rights as you do in District Court. The biggest right you do not have is the right to a jury trial. The good thing about being in Municipal Court is that if you don’t feel you got a fair shake, at the end of the entire process, you can appeal the case. You can go to the District Court, start the case over, and you can enjoy all the rights and privileges you are afforded by the Constitution.
STEP 1 – INVESTIGATION OF A POSSIBLE CRIMINAL ACT
The Occurrence:
A criminal prosecution begins with the alleged violation of a statute. Kansas has statutes that touch nearly every aspect of its citizens’ lives. From rules about how fast you can drive, what drugs you can possess, and when it's ok to take property from other people, statutes are the rules that govern our lives. Each statute is composed of a series of acts, called “elements,” and a crime is only committed if each element occurs.
For example, imagine a teen, age 16, asks his older brother, age 21, to buy him some beer to consume. Kansas Statute Annotated (K.S.A.) 21-5607 makes it a crime for anyone to buy or distribute any alcoholic liquor to a minor. Imagine the brother agrees to buy the beer, but then reconsiders. There, the crime has not been committed. Brother cannot be punished for only considering the illegal action. Now imagine brother agrees, takes money from the teen, and drives to the nearest liquor store. Again, still not enough for a violation of K.S.A. 21-5607. Instead, the brother has to actually buy the beer to complete the crime. Not until the last element has occurred has that specific crime been committed. Most crimes may be charged as incomplete crimes (such as attempted theft) or planned but not executed crimes (conspiracy to commit theft). However, even in these cases, the charged violation will be for the attempt or conspiracy, not for the full crime. Only when all the elements are met can the State successfully prosecute an individual for that crime.
Police Involvement:
Once a crime has occurred, the first step for that crime to get prosecuted is making a report to the police. Sometimes this happens immediately, like an officer sees the full crime unfold. Imagine the teen rode along with his brother to the store and waited in the car. When the brother came out, he handed a beer to the teen and the teen drank from the can. If a police officer watched this entire interaction, he may well approach the vehicle and arrest the brother. Viewing the crime, gave the officer probable cause to believe the brother committed the crime, and that is enough justification to allow the officer to arrest the brother, even without a warrant. The officer also doesn’t need to see the complete crime transpire. So long as the officer sees enough to form probable cause that a crime has been committed, the individual can be arrested and taken to holding pending the decision to charge.
Police do not always get a front row seat for crime. Instead, other individuals may observe criminal activity or what they think is criminal activity. These individuals can report what they see to local police departments, either using emergency lines (such as 911) or non-emergency means (making a walk-in report at the station). When the information is coming from a non-officer “a witness” the officer is generally not permitted to take the drastic step of jumping to arrest. Instead, an investigation is generally opened. That's where an officer attempts to gather enough information to form probable cause that a crime has occurred. This process can include taking statements from witnesses or individuals that claim to have knowledge of the crime, visiting alleged crime scenes, and perhaps even following suspects. These investigative steps can all be completed without a search warrant, because they are considered outside the definition of a Fourth Amendment “search.” Investigations can can hours, months, or even longer. It depends on the case.
Gathering Evidence:
There are significant limits on what tactics officers can use in investigating criminal activity. The Fourth Amendment ensures that police officers do not place investigations of alleged crimes ahead of an individual’s right to have a private life free from the state’s interference. For example, an officer may stop by a suspect’s house or job to ask questions. However, the owner of the property—the suspect or the employer—can demand the officer leave and refuse to answer any questions. Additionally, if the suspect was not home, the officer would not be able to enter the home or apartment to look around for any evidence. Instead, the officer must seek a warrant to search anywhere that a person has a “reasonable expectation of privacy.”
Don’t be fooled, though: “reasonable expectation of privacy” is more of a legal term of art than an accurate description of where an officer can’t search. An officer can “tail” a suspect by following that suspect around from place to place. A normal person would find this annoying and unreasonable, but the officer is free to go anywhere open to the public for investigating. This includes parking on the street outside a suspect’s home, even for days at a time. In California vs. Greenwood, the Supreme Court even found that when an individual places garbage on the curb to be taken away, an officer can open these bags and go through them freely. Again, these investigation techniques are highly objectionable to most people, but courts have found them to be acceptable methods of searching without a warrant.
It is also important to remember the other protections the Bill of Rights affords each individual. Not knowing your rights might mean you decline to exercise your rights when you need to. Police will often approach an accused individual wanting to ask questions. An individual has no obligation to answer any questions, but officers have no obligation to tell the suspect this fact. Additionally, if an officer stops by the accused’s home and is invited in, any evidence of criminal acts left out in the open may be collected by the officer.
Getting A Search Warrant:
Officers have one final, very powerful investigation tool: a search warrant. An officer can present evidence to a judge that demonstrates probable cause to believe a certain piece of evidence, directly linked to the suspected crime, is located at a certain place. The judge can then sign a search warrant, allowing the officer to search the property over the objections of the owner and despite the owner having a reasonable expectation of privacy. Any evidence found in these searches can be used in the investigation and then the eventual prosecution of the crime. Once enough of this evidence is obtained, the officer will hand the matter over to the prosecutor to seek an arrest warrant for the suspect.
If at any point you learn a report has been made against you or that an investigation is already underway and you are or may be the target of that investigation, you should immediately hire an experienced criminal defense lawyer.
STEP 2 – FILING CHARGES: WHO MAKES THE DECISION TO FILE CHARGES?
Once law enforcement has gathered sufficient evidence through investigation, the case is given to the district attorney. The district attorney is the lawyer for the state that is solely responsible for bringing charges against a defendant using the process called prosecution. This begins the criminal case, moving the matter largely to the courts rather than the police station.
SUFFICIENT EVIDENCE
The investigating police officer will turn over the fruits of the investigation to the district attorney for the proper county. The county handles the prosecution of all state offenses; that is, violations of a state law. The police investigate both state offenses and municipal infractions, or violations of city ordinances. A district attorney will only handle state felony or misdemeanor charges and a city prosecutor will handle ordinances violations for each city. The charges generally must be brought in the county where the crime is alleged to have taken place. The district attorney will go through the investigation file to determine if there is sufficient probable cause to file a complaint. This complaint or charging document is the legal pleading that lays out which crime(s) the suspect is alleged to have committed.
The district attorney will likely simultaneously file paperwork requesting that a judge issues an arrest warrant for the suspect. An arrest warrant is similar to a search warrant, but instead sets out a person that is to be brought into custody. A district attorney does not have the power to issue an arrest warrant by his or herself. Rather, only a judge can sign a warrant to make it effective. The judge will ensure that probable cause exists to support that individual has committed a crime. To show such probable cause, the district attorney will generally draft a written statement that outlines the evidence obtained by police during their investigation. Again, the threshold the district attorney must reach here is very low: probable cause. Probable cause only requires a “reasonable ground for belief of guilt,” as the Supreme Court noted in Maryland v. Pringle. With this standard in mind, most district attorneys will have little trouble establishing probable cause and succeeding in having an arrest warrant issued.
“Discretion to file” is one peculiar aspect of the American criminal justice system is the ability of a district attorney to completely forego criminal charges. This is called “prosecutorial discretion.” As the Kansas Court of Appeals noted in State vs. Cope, the district attorney “has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.” Basically, the district attorney has the only say regarding whether to charge a defendant or not.
Obviously, this power brings the potential for severe abuse. Recognizing this, Section 22-2301(2) grants the power to judges to order district attorneys to institute criminal proceedings in “extreme cases.” Kansas law also allows for a grand jury to file a complaint on its own behalf and force the district attorney to go forward with the charges. These exceptions are virtually unheard of, however. Instead, it is much more common place for district attorneys to freely choose to prosecutor nearly all alleged crimes put before them. Thus, even though in theory the state could choose to forego a prosecution, that is unlikely unless the case is extremely weak and that fact is obvious even from the investigation stage.
FROM SUSPECT TO DEFENDANT
Once charges are filed, the suspect officially “becomes” a defendant This may seem like a simply switch in wording, but it actually has very significant and real implications for the accused. Once a charge is filed, the options of eliminating the case are very few. Unlike investigations, which may ultimately never produce any real traction for the state, a filed complaint is quite different. First, the complaint creates a criminal case that is largely a matter of public record. This means any number of people, including potential employers, friends, or family members, can easily find records of the accused and what charges were filed. Second, once a case has been filed it can only be ended in four ways: by the state, by the court, by a plea deal, or by trial. Notice that the accused has no option of bringing a quick end to filed charges without winning a legal fight for dismissal.
LIMITATIONS OF FILING CHARGES
The longer a district attorney waits to file charges, the more “stale” a case becomes. Witnesses disperse around the country. Some may even pass away or suffer from failing memories. This process can hurt both the prosecution and defendant. Recognizing this, Kansas has adopted a statute of limitations for nearly all crimes. These serve as time limits upon when a district attorney may file a complaint for committing a crime. After the set number of years passes, the suspect will not be subject to prosecution.
In Kansas, murder has no statute of limitations. However, the Due Process Clause of the Fourteenth Amendment would work to prevent a district attorney from delaying charges in bad faith, even for murder. For example, imagine a man is suspected of murder, but the police investigation reveals that three older neighbors of the man claim he was with them when the killing took place. The district attorney decides to wait to file the charge. After thirty years, the last of the neighbors passes away and on the date of that neighbor’s death, the charge against the man is filed, even though no new investigation or evidence has been performed on the case. The Due Process Clause would likely bar that prosecution because the attorney simply waited for the defendant’s defense to “go cold.” To find out more about limitations of filing charges read our page on “How long does a prosecutor have to file charges?”
If at any time you discover that the State intends to file criminal charges against you you need to immediately contact an experienced criminal defense lawyer to begin preserving your constitutional rights.
STEP 3 – GETTING ARRESTED ON A CRIMINAL CASE
In conjunction with filing charges, the district attorney will often request an arrest warrant for the accused. Once issued, the arrest warrant allows police to locate and detain the individual until he or she can be brought before a judge. This detainment can last anywhere from only a few hours to several months while the case progresses through the criminal justice system. At the point of arrest, the state has turned the tables on a defendant. While a defendant is rightfully entitled to several advantages during trial, the arrest stage places defendants in perhaps the most vulnerable position that exists in a criminal case.
Investigation Detainment
An arrest pursuant to a warrant may be the second detainment a defendant experiences. Remember, an officer may have probable cause to arrest an individual without a warrant or charges being filed. The officer is allowed to detain the individual for up to 48 hours for further investigation based on this probable cause alone. The 48-hour Rule, outlined in County of Riverside v. McLaughlin, requires that after 48 hours either the state must file charges or a judge must make a determination regarding if the suspect should remain in custody. Because this rule does not “pause” for weekends or holidays, a suspect may be detained for a period of time and then released pending further investigation. This may also be the case when an investigation simply cannot produce enough evidence to support filing charges within this window. Once the district attorney has enough evidence to show a judge there is probable cause, charges will be filed and then an arrest warrant issued. At that point, the police will again seek out the defendant to arrest him or her.
Executing The Arrest Warrant
Once a warrant is signed by a judge, the police will attempt to locate the defendant to arrest him or her. A valid arrest warrant will allow the police to seek out the defendant at home, work, or any other place she may be found. The police may go to the defendant’s home and perform a knock-and-announce entry. This consists of the police knocking on the door and announcing their presence and position (“Open up, police!”). If the defendant fails to open the door in a prompt manner, the police may break into the property. Courts are generally very pro-police in finding a knock-and-announce forced entry permissible. Courts have gone so far as saying that even a pause of only three seconds may be enough to justify breaking down the door.
Upon locating and arresting the defendant, the police are allowed to conduct a “search incident to lawful arrest.” These SILAs can be viewed as having two components: a personal search and a search of the area where the defendant was arrested. The personal search allows the police to pat down the defendant and to search any bags that are within the “wingspan” of the defendant. Basically, anything the defendant could reach is within the scope of the search. Additionally, when a defendant is arrested inside a home or apartment, the police may search the immediate area for weapons the defendant could reach or for other individuals that could be lying in wait to attack the officers. Thus, this search may include opening closets within the same or adjoining rooms, but not a full investigation of another floor of the residence. Any evidence of criminal activity—even different criminal activity from that which the defendant was arrested—can be seized by the police and used as evidence against the defendant.
Delayed Arrest on an Old Warrant
Police may attempt to arrest a defendant at his home, but find that he is not there. A warrant remains “active” until the either defendant is arrested and the warrant signed and returned to the court or the court rescinds and quashes the warrant. Thus, a defendant may have an active warrant for months or even years without ever realizing it. In these instances, a defendant may be pulled over for a minor traffic offense and have their identity run through a database. The database will notify the officer of any active warrants and the officer may execute those warrants by arresting the defendant on the spot for the entirely different crime. For example, an individual may be pulled over for failing to use her blinker and arrested for a theft charge from two years ago that she never knew existed. This is particularly common when an investigation takes so long to produce probable cause that a defendant moves from one residence to another. In these cases, the defendant is arrested on the “old” charges that produced the arrest warrant and the “new” charges—the reason that the officer pulled over the defendant to begin with—may constitute an entirely new investigation against the defendant that ultimately produces another charge immediately or future arrest warrant.
Post Arrest
After a defendant is taken into custody, officers will generally attempt to interrogate the individual. For a long time, this process was extremely unfair to the defendant, with officers using dastardly tactics and completely disregarding the rights of the accused. The United States Supreme Court handed down arguably its most famous decision in response to these tactics: Miranda v. Arizona. Miranda requires that officers give an arrestee fair notice of his or her rights; what are commonly now known as Miranda warnings. These include four basic rights and one assurance: (1) the right to remain silent; (2) the right of the state to use any statement against the defendant; (3) the right to an attorney; (4) the right to have an attorney appointed if the defendant cannot afford one; and (5) the assurance that the defendant understands each and every one of these rights.
The Miranda warnings are a very nice gesture, but they lack one particular point: these rights must be affirmatively asserted. This means that officers are allowed to badger a defendant with questions, lies, and misrepresentations unless and until the defendant says they want to remain silent or talk to a lawyer. This lack of understanding results in post-Miranda interrogations that produce a substantial amount of evidence for the State. Upon arrest, the most important advice can be quickly and easily summed up: Say one thing and one thing only—“I want my lawyer.” Police are allowed to lie to defendants and to only present half-truths regarding their rights during these interrogations. Thus, even if a defendant feels she has nothing to hide, these interrogations are designed to produce useful evidence for the state. They are not designed to be a fair conversation about what happened. The tactics that are available to the interrogator make this clear. The worst mistake a defendant can make after being arrested is failing to use the rights the Constitution grants to him or her.
If you've been arrested it is time to hire an experienced criminal defense lawyer. Any delay in preserving your rights can be detrimental to your case.
STEP 4 – GETTING YOURSELF OUT OF JAIL (HOW TO BOND OUT)
Once an individual is arrested on charges, the individual may be held in jail until his or her first court appearance. However this isn't a requirement on every case. Most warrants for arrest will include a bond amount and bond conditions. An individual can post bond, also known as bail, and be released to await their first court date. A bond is an agreement between the Court, defendant, and possibly a third party. Thus, it is important to understand exactly what a bond is and does.
Bonds and Posting Bond
A bond is essentially a contract with the Court to attend all future court dates. The arrangement is very similar to a contract with a pawn shop. In a basic pawn agreement, a person places property in the hands of the pawn dealer in exchange for a short-term loan. Fail to pay the loan, and the pawned property is lost. That is how the pawn dealer ensures the debt will be paid. Bonding out of custody is very similar. The defendant is making a promise that she will appear for her court dates going forward, and the loan is “secured” by a payment of cash or through a bonding agent’s guarantee of payment. The Court holds this money until the final disposition of the criminal case or when the court orders the bond money released. In some cases, the Court can take certain costs from this amount before refunding it, including court costs, fines, or fees.
A bonding agent is a recognized individual or company that can agree to assume your potential liability for failing to attend court dates. Rather than paying the cash to the court, the agent is hired and signs a guarantee to pay a set amount should the defendant fail to appear in court. In lieu of making this payment, the agent can locate and bring the defendant back to jail in a process known as surrendering the bond.
What is a "PR Bond?" (Personal Recognizance)
In some cases, a defendant can be released on a “no cost/fee” bond. These bonds are known as personal recognizance (PR) bonds or in some jurisdictions own recognizance (OR) bonds. They function just as regular bonds do, with the defendant promising to attend all future court dates in exchange for release. The difference is that no “collateral” is put up by the defendant. Instead, the defendant is simply released in exchange for the promise to attend court. These type of bonds are generally issued with an accompanying “bond amount” that the defendant will owe if he or she misses a court date. An example would be a "$2,500 PR bond.” The idea being that the person can get out without posting any collateral (paying any money), but they will owe the Court $2,500 if they fail to appear at a court date.
Bond Amounts And Conditions
Bond amounts can be set at any amount that is not considered “excessive” under the Eighth Amendment. This allows extremely wide latitude to the judge issuing the warrant. In State v. Foy, the Kansas Supreme Court noted common factors judges should consider in setting bond amounts. These included the nature of the crime, number of past convictions, and the probability of fleeing the state—commonly called “jumping bail.” The more severe a crime is, the higher the bond amount is likely to be. Additionally, factors that suggest a defendant may flee the state to avoid prosecution are taken in account. These include the means and motivation to flee. A defendant that lives and works in Colorado, but was found to have drugs while driving through Kansas may be considered likely to jump bail by returning home to Colorado. Finally, there is no guarantee of bond at all. In the most extreme cases, the court may not set a bond at all without violating the Eighth Amendment.
The bond will also set forth conditions of release, as outlined by K.S.A. 22-2802. Again, these conditions can vary greatly, from electronic monitoring, to house arrest, to alcohol abuse treatment, to limiting your contact with other people during the pendency of your case, and more. The conditions of the bond will be laid out in detail and must be adhered to just as attendance at court must be. The conditions of a bond are also a factor in determining the amount. A restrictive condition, such as complete house arrest, may reduce the risk of escape and thus justify a lower bond amount.
A few important considerations regarding bond amounts and conditions should be noted. First, the bond amount set at this point in the criminal process—the amount set for the original filing of the charge—is determined with no input from the accused or the criminal defense attorney. The district attorney presents evidence that was gathered by the police and arranged in the most damning way possible. That information alone is what the judge uses to set this first amount and conditions. It should come as no surprise that this first bond is generally not favorable or fair to the defendant. This ties into the second point: bond amounts and conditions are subject to change. And that change can be very drastic, particularly when capable defense counsel is hired to argue for the reduction or modification. When facts and law are argued for both sides, the judge gets a more accurate picture of the case. This often leads to a bond amount and conditions that are more reasonable.
Violating Bond
A defendant can violate a bond in two ways. First and foremost, a defendant violates bond when he or she fails to attend a scheduled court date. This is not just the first court date that appears on the face of the bond, but every court until the matter is either resolved or the judge issues an order releasing the bond or excusing an appearance. Second, as mentioned above, a bond is violated when a condition is violated. Examples include missing required alcohol abuse meetings, contacting alleged victims and/or witnesses to the case, or unauthorized leaving of the home while under house arrest.
When bond is violated, an immediate result is the issuing of an arrest warrant for the subject. This arrest warrant can include a new bond amount and conditions, which will almost certainly be increased based upon the failure to appear at the court date or violation of conditions. Some bond violations can even result in additional criminal charges. Additionally, the cash that was used as “collateral” will be lost. It will not be applied towards fines, court costs, or any other means. Instead, it is simply forfeited for failing to honor the bonding agreement. If the bond was secured through a bonding agent, the agent will likely attempt to locate and arrest the defendant. In fact, this “bounty hunting” is a routine practice of bonding agencies and can be an extremely effective means of locating defendants that have jumped bail.
If you've been arrested, and been placed on bond. You need to retain an experienced criminal defense lawyer to begin asserting your rights.
STEP 5 – FIRST APPEARANCE ON YOUR CASE
After being charged and arrested, a defendant will make their first appearance in court. If a defendant has not bonded out, they will appear in court in custody. If a defendant has bonded out, they will be required to be at court on the date and time listed on their bond paperwork. A failure to appear at this court hearing (or future hearings) can result in the bond being revoked and a new arrest warrant being issued.
TIMING OF FIRST APPEARANCE
K.S.A. 22-2901 lays out the parameters of first appearances. These appearances must happen quickly. Usually a defendant is seen by a judge the next day the court is open after his or her arrest, but that is not a set deadline. Instead, factors including circumstances of the arrest, investigation, and charges filed will determine whether there is an “unnecessary delay.” In State v. Nading, the defendant was arrested early on Saturday morning, the charges were filed later that day, but he was not seen by a judge until Tuesday. The Kansas Supreme Court held this was not an unnecessary delay based upon the investigation’s circumstances. Therefore, as a general rule, the first appearance is usually the next “business day,” but the following day is also within reason.
In case a defendant is held too long before being brought before a judge, they would have a valid complaint under K.S.A. 22-2901. The court could suppress evidence that was gathered during the unnecessary delay. Courts have recognized that a person is likely to say "whatever they need to say" to try to be released the longer they are left in custody. In State v. Crouch, the court relied on that rationale when it suppressed a confession from a defendant who had been in jail for almost two weeks without their first appearance. The Kansas Supreme Court has also stated that in extreme cases, a dismissal of the charges may be warranted. However, no case, including Crouch, has yet to have an excessive, unnecessary long delay to warrant a dismissal of the charges.
PURPOSE OF FIRST APPEARANCE
First appearances have a specifically limited purpose. In felony cases, the defendant is not asked to offer any defense or explanation of the incident, nor are they asked to plead guilty or not guilty. Rather, this appearance is to safeguard the defendant’s rights as held by the Kansas Supreme Court in State v. Wakefield. Included in these rights is a brief review of the investigation to ensure probable cause was present to warrant the arrest. The court should check that there is adequate reason to keep the defendant in custody as well as to re-visit any previous set bond. The court also wants to ensure that it stops any unlawful attempts to inappropriately compel the defendants into waiving their rights by law enforcement. Then, the defendant will be advised of what the specific charges are against them. Finally, the Defendant will be asked if they are going to retain their own attorney or if they need to be considered for court appointed counsel (a public defender).
First appearances can also be seen as a “housekeeping” or “table setting” hearing for the preliminary examination. The objective is that the defendant and their attorney will be prepared for the preliminary examination. The preliminary examination is where the defense will challenge the prosecuting attorney’s evidence which gave probable cause to filing the complaint. This challenging can only happen when the defendant has an attorney and that attorney has had ample time to prepare. Therefore, a major point of the first appearance is to determine whether the defendant wants to hire legal counsel, represent themselves (called pro se), or if they qualify for a public defender.
The dilemma of public defenders is well known. These lawyers often have huge caseloads and can become overburdened by the amount of work. This sometimes leads to inadequate legal representation that a criminal case normally demands. It can be quite difficult to find and hire private legal counsel while a defendant is in custody. Therefore, family members and friends can reach out to attorneys to hire them for an incarcerated individual. The quicker an experienced criminal defense attorney is contacted and hired, helps ensure that a case does not become delayed and that the defendant is not held in custody for longer than what is necessary.
STEP 6 – GETTING DISCOVERY FROM THE PROSECUTOR
Following a first appearance, the primary focus of the accused should be retaining an experienced criminal defense lawyer. The first true test of the state’s case will come in the form of a preliminary examination. But before defense counsel is ready to challenge the evidence, that evidence must be received, reviewed, and discussed with the defendant. This process is known as discovery. By its nature, it is a time-consuming and difficult process. But it is also the place where capable counsel excels, because it is where cases are won and lost.
Prosecution’s Role in Turning Over Discovery
Before diving into the discovery process, it is important to understand the role assigned to the district attorney by the Constitution and Kansas state law. The role of the prosecution is to enforce the law, not necessarily to get convictions. The prosecutor's role is to seek justice and the defense attorney's role is to protect the defendant from the State. The Constitution imposes obligations upon a district attorney based upon the difference of these two goals. One such example comes from Brady v. Maryland. In that case, the United States Supreme Court held that a prosecuting attorney has an obligation to disclose evidence uncovered during police investigations that tends to either prove the defendant didn’t commit the crime or that someone else did. This means that almost any information a police investigation uncovers should be turned over to defense counsel. It is important to keep this obligation in mind when looking at the discovery process.
Initial Request for Discovery
K.S.A. 22-3212, lays out the starting point of discovery obligations for district attorneys. When defense counsel requests discovery the state must produce key pieces of evidence. This includes written or recorded statements made by the accused, including any alleged confessions. Results of any scientific tests, such as DNA tests, mental evaluations, or breath-tests, must also be turned over. Also included are any documents or physical evidence (such as a weapon or stolen property) in the control of the state. It is important to note that these requests extend to the underlying police investigation, as well as the evidence the district attorney intends to use going forward.
Unlike civil cases, where much of the evidence is documentary, criminal cases often will have various types of physical evidence that must be kept by the state. Thus, defense counsel will generally be required to inspect this evidence at police stations or the district attorney's office. This can add to the difficulty in quickly preparing for the preliminary examination, particularly when counsel is retained late.
Using Discovery
Defense counsel will seek to attack the credibility of the district attorney’s evidence using the discovery as a guide. Once the documents are produced and the physical evidence is made available for inspection, defense counsel must begin finding weaknesses and inconsistencies. The goal here is quite different than at a full-fledged trial. The district attorney will only have to convince the judge that there is probable cause—not proof beyond a reasonable doubt—of two things at the preliminary hearing: (1) the alleged crime was committed and (2) the defendant committed that crime. Thus, the focus will be on undermining the evidence that will be used towards the second question.
The produced discovery is also useful in that it is the “freshest” evidence that will be produced. This is because it comes closer to the occurrence, meaning memories are better and scenes are as they were on the date in question. Thus, even though this “first round” of discovery is relatively limited in scope, it can give experienced legal counsel a strong impression of how the case will look at trial.
Illegally Obtained Evidence
Evidence that is obtained unlawfully is generally suppressed, or not allowed to be used, at trial. Commonly suppressed evidence includes evidence found via an unlawful warrantless search, evidence found on a person following an unlawful arrest, and confessions given without Miranda warnings. When defense counsel learns of the illegal means by which evidence was obtained, he will file a motion with the court to suppress the evidence and keep it out of trial.
Thus, this early discovery is also a good opportunity for defense counsel to trace evidence back through the investigation. If any police misconduct is found, a large portion—if not all—of the evidence that was found from that misconduct will be suppressed. However, the longer this chain of evidence grows, the less likely a court is to suppress all resulting evidence. This makes initial discovery a crucial time to cut off these chains of illegal evidence before they branch out too far. For example, imagine a defendant is arrested without probable cause. The officers pat down the defendant and find an envelope containing marijuana. Also in the envelope is a note discussing prices and quantities of marijuana with a phone number. The police may use that phone number to contact defendant’s supplier, and that supplier may make a deal by testifying about other illegal activities of defendant. All of this evidence is growing out of an illegal arrest and should be suppressed. However, the court will eventually find that the chain has grown too long to definitively say the illegal arrest is the sole reason police would have discovered a particular piece of evidence. This highlights the importance of stopping illegally obtained evidence as early as possible.
STEP 7 – PRELIMINARY EXAMINATION
After legal counsel has been retained and had time to prepare, a preliminary examination will be held as required by Article 29 of the Kansas Criminal Procedure Code. At this hearing, the judge will ensure that probable cause exists in order for the case to move forward . If the charge is simply a misdemeanor, this hearing is not required. However, for felony charges, it is an important first step in the prosecution of the alleged crime.
Timing of Preliminary Examination
K.S.A. 22-2902 requires that a preliminary examination be held within two weeks of the first appearance of the defendant. This time limit may be expanded on certain, very limited circumstances. The defendant’s lawyer should have had some opportunity to review the initial discovery and prepare to challenge the state's evidence. Therefore, as noted in State v. Winter, there is no harm to the defendant when the timeframe is extended upon agreement with the district attorney. However, the district attorney is very rarely allowed a later preliminary examination beyond the two-week window when the defendant does not agree.
Purpose of Preliminary Examination
The purpose of a preliminary examination is again, very limited. The defendant does not need to plead at this stage. Instead, the judge is simply ensuring that the evidence produced by the investigation can establish probable cause of two things. First, that a crime was in fact committed. Second, that the defendant is the one that committed that crime. So long as there is probable cause, the court will allow the prosecution to move forward. If the district attorney cannot prove one of these elements, there is insufficient probable cause for the charge and they must be dismissed immediately. As discussed below, district attorneys rarely fail to meet this standard as it is much lower than the evidence needed to convict.
Conducting The of Preliminary Examination
A preliminary examination is conducted in a similar fashion to a trial. Witnesses and evidence are put forth by the district attorney. The defense counsel is able to question the witnesses and argue the weaknesses of the case presented by the district attorney. Unlike a trial, however, no jury is present. The judge will make both the rulings of law and determine the sufficiency of the evidence. Finally, though rules of evidence which control what can and cannot be used at trial generally apply, there are some relaxed standards at this stage. These can be significant, but are largely technical and best left to experienced counsel to deal with.
The evidence put on by the district attorney attempts to prove the two things noted above: a crime has been committed and the defendant committed that crime. However, the district attorney does not have to carry the weighty burden that applies at trial. Rather than having to prove these facts beyond a reasonable doubt, the district attorney needs to only establish probable cause for each. To put it another way, the prosecution only needs to put on enough evidence that would allow an ordinary person to “entertain a reasonable belief of the accused’s guilt.” In State v. Washington, the court noted how low of a burden this was: it is not more likely guilty than not, it is just a reasonable possibility of guilty. Because of this relaxed standard, many cases that can never succeed at trial are allowed to progress beyond the preliminary examination. Lessening the burden even further, the Kansas Supreme Court instructed in State v. Bell that when testimony conflicts on a key fact, the judge should find probable cause so that a jury may determine which witness to believe at trial.
Defense counsel may make a suppression motion at the preliminary hearing however this is not common. Generally, if any evidence was illegally obtained and that fact was found out via discovery, the preliminary examination is a convenient opportunity for defense counsel to bring forth those arguments. If the court determines there was illegally obtained evidence, that evidence will not be allowed to be used by the district attorney in attempting to establish probable cause. Even if the evidence is not suppressed, it must still largely comply with the rules of evidence to be considered by the judge. However, this is generally not an issue as the amount of evidence needed to carry the day for the prosecution is significantly less than what is needed for trial. The district attorney may be able to establish probable cause through the testimony of just a few witnesses or a key piece of physical evidence.
Outcome of Preliminary Examination
After the evidence has been fully presented, the judge will make a determination. If sufficient evidence exists to support probable cause of the charged crime, the case will proceed forward. If probable cause is not established for any crime, the charge is dismissed. However, the evidence produced may not establish probable cause for the specific crime charged but may establish that another crime has been committed by the defendant. In this case, prosecution for the lesser-included offense—the less severe crime “within” the charged crime—may proceed in place of the charged offense. For example, if the filed charges are for murder, but the judge finds no probable cause of the intent to kill, the court may allow the state to go forward on charges for manslaughter. However, as noted in State v. Leslie, the lesser-included offense must still be a felony, as only felony charges are given a preliminary examination. If the lesser-included offense is only a misdemeanor, the judge must dismiss the charges completely.
There are two possible outcomes of a preliminary examination:
The case is dismissed because of lack of evidence
The defendant is bound over to stand trial on some felony charge. (Bound over just means the case goes forward)
When putting on a preliminary examination it is imperative that you have an experienced criminal defense team working for you. Unless you specifically waive counsel the Court will require that you have an attorney present at a preliminary examination as it is a critical stage of the case.
STEP 8 – FILING MOTIONS IN A CRIMINAL CASE
Following the preliminary examination, the charges that the defendant was bound over on are progressing toward a possible trial. The official document that contains the charges is referred to as a "Complaint" or "Information." This document establishes the charges that were found to be supported by probable cause during the preliminary examination—almost always the charges originally filed by the district attorney. At this point, both defense counsel and the district attorney have a variety of motions they may file to accomplish various tasks in preparing for trial. The most common motions are discussed below.
Motion To Suppress
As discussed previously, a motion to suppress seeks to prevent illegally obtained evidence for being used at trial. The focus of these motions is on evidence that was obtained in violation of the defendant’s Constitutional rights. Common examples include illegal searches, improper arrests, and coerced confessions. When the actions of the police are improper, the state is not permitted to reap the rewards of illegal behavior by using the evidence found. But the suppression can go a step further. Not only is evidence that was directly found from illegal conduct suppressed, but generally so is evidence that is found based upon actions growing out of the illegally obtained evidence.
For example, suppose an officer arrests a suspect by illegally entering the suspect’s home without a warrant. Once in the home, the officer sees what he recognizes as a stolen computer and confiscates it. This action would be proper had the officer been legally inside the suspect’s home, but since he was not legally there, the computer should be suppressed. But the officer did not stop at the computer; instead, he immediately opened the computer once back at the police station and found fraudulent tax documents for the suspect. These documents should also be suppressed, as they grow out of the illegal entry as well. There are exceptions to when evidence should be suppressed, but this rule holds true for a good portion of illegally obtained evidence.
If a defendant succeeds in having the evidence suppressed, the results can be devastating for the state’s case. A key piece of evidence may be lost, resulting in the case simply falling apart. Thus, experienced defense counsel can use even a pending motion to suppress to maneuver into a favorable plea agreement. A defense lawyer may leverage a suppression issue to get a favorable plea for his client. Simply because a piece of evidence was legally obtained does not mean it will be allowed to be presented at trial. For that, the evidence must fully comply with the rules of evidence.
Motion In Limine
A motion in limine (lem-on-ney) operates similarly to a motion to suppress, but the basis is quite different. Rather than arguing the evidence was illegally obtained, motions in limine argue that the rules of evidence do not permit the evidence to be used a trial. The rules of evidence prevent certain evidence from being presented for a wide variety of reasons. These commonly include evidence that is aimed at leading the jury to decide a case based on passion rather than facts or evidence that is simply too unreliable to be considered. Judges tend to deal with motions in limine a bit differently than suppression motions, not making a decision until a lot closer to trial. The benefit of filing these motions is placing the law before the judge early on, rather than having to make a complex legal argument on-the-fly during trial. These motions can be used to cut the other way as well, presenting the judge with law that supports the use of a particular piece of evidence—especially when the evidence seems to be barred by the rules of evidence.
Motion To Dismiss
A motion to dismiss argues that something is so defective with the allegations or case that the court has the power to just dismiss the matter without a trial. A motion to dismiss focuses on defects with the process of pursuing the claim in court, rather than the facts of the case. For example, the court may lack jurisdiction over the matter if the alleged crime took place entirely in another state and there was no direct effect on Kansas. The motion may also argue that the accusations, even when taken as true, do not constitute a crime under Kansas law. In State v. Tendon, the charges of arson were dismissed because it was undisputed that the defendant had been asked to burn the property at issue by the owner. Because under Kansas law, arson must be the burning of one’s own property or the property of another without consent, the allegations in the charge could not be arson.
Motion To Modify Bond
One motion that defense counsel may need to make is a modification of bond. As a prosecution progresses, the court will become more familiar with a case and the likely strength of the evidence. Additionally, once a defendant has retained counsel, most of the worries regarding flight will be reduced. This means the factors used in setting bond at the very beginning of incarceration have substantially changed. The defense attorney can motion the court to reduce the bond amount or remove certain conditions on the bond to address these changes. The district attorney is allowed to argue against such changes and can also motion the court for increased bond or revoke bond of an out of custody defendant.
Having an experienced criminal defense lawyer is necessary when deciding what motions are appropriate to file in your case and what tactical advantage may be obtained by the timing of those motions.
STEP 9 – DOING YOUR OWN DISCOVERY
In addition to the initial disclosure of discovery to the defendant, other discovery will continue to take place leading up to trial. The State and in some cases the defendant will be required to produce discovery to one another. This information will form the evidence that will be used at trial. The two sides have very different requirements concerning discovery, however. The state is under an obligation to produce nearly all evidence resulting from its investigation. Again, under Brady v. Maryland, this includes exculpatory evidence that suggests someone other than the defendant committed the crime. In contrast, the defendant enjoys a right against self-incrimination under the Fifth and Fourteenth Amendments. This does not mean the defendant is free from producing anything, but it greatly limits what the state may ask a defendant to produce.
Depositions in a Criminal Case
A deposition is testimony given under oath. The process is very similar to testifying at trial, with lawyers asking questions of the witness and a stenographer taking down everything that is said, word-for-word. Under Section 22-3211, witnesses may be deposed with the court’s permission. The defendant (and defense counsel) are entitled to be present at every deposition, whether requested by the defendant or the state. The witness will be sworn in and then the requesting party will begin questioning them. The opposing attorney will be allowed to object to questions that are improper for various reason. Once the requesting party is finished, the other attorney will have an opportunity to question the witness. Depositions can range in time from only a few hours to several days. A witness that is deposed will generally also be required to testify at trial. However, if the witness flees the state, dies, or become incapacitated, the deposition testimony may be used at trial. Therefore, it is very important that depositions are handled with great care, just as trial testimony must be.
A common type of witness that may be deposed is an expert witness. Experts can be used to testify to a virtually unlimited variety of topics that require some type of specialized knowledge. These may be a coroner testifying as the cause of an individual’s death or a lab technician testifying about testing a blood sample’s alcohol content. Because of the highly specialized knowledge these expert possess, it is important for an attorney to have an opportunity to test the theories and science behind an expert’s opinion. The information gathered in these depositions can even be used to prevent an expert from testifying at trial if his theories or methods are too unreliable. The use of depositions in Kansas is quite rare and judges limit their use in only extreme cases.
Disclosure of Witnesses by the Prosecution
The State has to disclose any possible witness that they may call at trial. There can not be surprise witnesses by the State. Generally the State adds all witnesses on the charging complaint and makes a motion to endorse witnesses as new witnesses come up in the case.
Disclosure of Witnesses by the Defendant
The Defense doesn't have to disclose witnesses in the same fashion as the Prosecution. The Defendant needs to disclose Alibi witnesses and expert witnesses. The defense has much more protections in place than the State does.
Visit the Scene
The Defendant and counsel may decide to visit the scene and or document the scene with pictures or video. Sometimes this is best done by a videographer or a private investigator. These types of physical evidence can be very useful at trial.
Interview Potential Witnesses
The State has an army of investigators. The defense should also. It is common for a defendant in a criminal case to hire an investigator and have that person track down witnesses or other leads on evidence that may be helpful to his/her case.
Limits Of The Fifth Amendment
A defendant cannot be forced to testify against him- or herself. However, one threshold question is whether the requested information is considered “testimony” under the Fifth Amendment. For example, a defendant can be forced to submit to a DNA test or fingerprinting at the request of the state. In California v. Gilbert, the United States Supreme Court determined that the state could request and require a defendant to submit a handwriting sample without violating the Fifth Amendment. This result seems a bit off, as the handwriting sample was used to compare to an incriminating handwritten note at trial to implement the defendant in a bank robbery. However, the court focused on the fact that it was a physical function, rather than testimony.
Doing your own discovery can be the difference between winning and losing a case. Having an experienced criminal defense team working to preserve your interests is vital at this stage.
STEP 10 – GOING TO PRETRIAL CONFERENCE
Kansas Statute 22-3217, outlines the procedure for pretrial conferences. These conferences are important meetings between the judge and both attorneys. In these meetings, major issues concerning the upcoming trial can be addressed and dealt with. Experienced counsel will use a pretrial conference to both gain a favorable position going into trial and determine how a judge will likely handle the trial.
Timing of the Pretrial Conference
Pretrial conferences can occur any time after the filing of an information or indictment. However, almost every trial will have a final pretrial conference just before trial begins. These generally take place a few days before a trial begins. The aim is to make determinations regarding what is likely to occur at trial, so the timing should be as close to trial as possible. Judges are always pressed for time and looking forward to the never-ending line of upcoming cases. Thus, an attorney can quickly gain credibility and favor with a judge by actively trying to work with the opposing attorney to make a trial run quickly and efficiently. This does not mean that either side should put efficiency before their case, but simply that a trial will usually boil down to a few contested facts. These facts, rather than outside distractions, should be the focus of the trial. When a pretrial conference is held too early, these issues may still be too out of focus to adequately prepare for.
Purpose of Pretrial Conference
A pretrial conference is an opportunity for both attorneys and the judge to be proactive in regards to the upcoming trial. The details of the trial will be worked out, including the process of selecting a jury, how long the trial is excepted to last, and any abnormal procedures or requests. In addition, the attorneys have the opportunity to put potential issues before the judge. These can include evidentiary problems with exhibits or testimony defense counsel anticipates the district attorney will try to present. If these problems were known early on, the judge may have a motion in limine to rule on regarding the evidence. If not, the pretrial conference presents a great opportunity for the judge to hear both sides of an issue and make a calm, reasoned decision rather than having to do so during the trial.
A great benefit of addressing these issues at the pretrial conference is the ability to bind the district attorney more easily to agreements. A district attorney is likely to feel little pressure to agree to even the most reasonable requests when made during trial. However, the judge has great power in controlling how a trial proceeds. Thus, a district attorney that refuses reasonable requests or compromises concerning evidence can be forced to accept those terms during a pretrial conference. This was the case in State v. Coleman, where a judge refused to allow a witness to be called because an agreement had been reached to not call that witness at the pretrial conference. The Kansas Supreme Court held that the judge had to the power to hold the parties to that agreement, even if the district attorney wants to change his mind at trial. This power also allows the court to provide appropriate punishments for unnecessary delay or bad-faith refusals concerning evidentiary disputes or discovery requests.
Plea Bargaining at Pretrial Conference
At any time prior to conviction by the jury, a defendant may enter a plea bargain with the state. A plea bargain is an agreement to accept punishment for a crime. This is generally done in exchange for a conviction to a lesser crime or reduced punishment. A defendant can plead guiltily, admitting to the charges in full, or no contest (nolo contendere), reserving an admission of guilt but accepting the conviction and punishment nonetheless. Each type of plea has its own attributes, such as how that conviction may be used against the defendant in a later suit. These differences and risks are best discussed in the context of each case’s unique facts.
The pretrial conference is a ripe time for plea bargaining. At this point, all the evidence that could possibly come in at trial is known. Additionally, evidence that is likely not to come in at trial, and therefore will not be considered by the jury, is also known. This paints a good picture of the obstacles a district attorney will face in proving the case beyond a reasonable doubt. The attitude and views of the judge are also known, giving a good indication of how he or she will likely rule on key issues. This all adds up to a perfect opportunity to make a good plea bargain.
Any plea deal reached by the district attorney and defendant must be approved by the court. A large part of this requirement is to ensure that the defendant understands everything he or she is giving up: the right to have a jury determine the outcome, the right to have the state prove every element beyond a reasonable doubt, the right to confront directly her accusers, etc. A court wants to ensure that the defendant is making an informed decision. And that requires knowing what is being lost in the bargain. If the court is satisfied that the defendant has had adequate information given to her, including effective legal counsel, the plea will be approved and the case does not need to go to trial.
The Pretrial conference is a valuable tool in many different aspects, it allows for issues to be clarified, it allows for motions on evidence to be heard and ruled upon, it helps with the housekeeping of trial and gives the defendant a host of other beneficial insights into how the trial will go. Relying on the advice of an experienced criminal defense lawyer during the conference is vital.
STEP 11 – TAKING YOUR CASE TO TRIAL
A case will go before a judge or jury for trial if a plea agreement is not reached after the pretrial conference. However, the option to strike a plea deal is still available until the jury renders a verdict. If no deal can be reached the defendant will proceed to trial. At trial the prosecution is forced to meet their high burden of proving the defendant guilty. Trial has six basic stages, below is a summation of those stages and an example of each from a real trial.
STAGE 1 - INTRODUCTIONS
Trial begins with a few brief statements by the judge on how the trial will be conducted. Each judge does this stage of the process a little differently. The introductions will generally explain the process and introduce the court personnel to the prospective jurors. The judge will give some basic instructions and ask some very basic questions to the prospective jurors.
EXAMPLE OF AN INTRODUCTION IN A REAL CASE
STAGE 2 - VOIR DIRE
Trial begins with voir dire (“vwa-deer” or “vor die-er”). During this process a big group of potential jurors will be reduced to the twelve jury members (only six are needed for a misdemeanor case) and any essential alternates. Voir dire can take anywhere from a few hours up to several days. The reasoning behind this process is so that each side can ensure that the members on the jury will be able to view the case from the respective perspectives. Both attorneys and the judge will question the jurors in order to discover any impartiality, bias, or knowledge of the case. Potential jurors answer these questions and sometimes an open dialogue is created. If a potential juror reveals that they cannot be impartial, has some unchangeable bias against either party, or has outside information regarding the case, that individual will be excused “for cause.” An individual can also be excused via a preemptory strike by either side. The number of these strikes are limited and can usually be exercised for about any reason. An attorney will strategically use these strikes to exclude impartial and fair yet unfavorable individuals from being put on the jury.
One exception does exist for the preemptory strikes. If a non-striking attorney believes a preemptory strike was racially, gender, or religiously based, they can bring forward a Batson challenge to that strike. These challenges originated from the United States Supreme Court case Batson v. Kentucky and can be crucial in criminal cases. The party challenging the strike will have to show that the shielded characteristic was the true reasoning behind striking the potential juror, instead of the non-discriminatory reason initially given. This can be very hard to do due to the limited information at hand, but if a party wins, the potential juror will not be stricken, but rather will be allowed to serve on the jury. Please note that it is not guaranteed that a jury will be gender (or racially) diverse. A Batson challenge is not a general attack on the jury’s makeup, but rather just the specific preemptory strike.
EXAMPLE OF A VOIR DIRE IN A REAL CASE
STAGE 3 - OPENING STATEMENTS
The jury is sworn in after voir dire and then each attorney is allowed to give an opening statement. The prosecuting attorney will go first as it is the state’s burden to prove its case. Defendant’s counsel will follow the state’s opening statement. The opening statements will layout who the defendant is, the crime they are accused of, and what evidence will be introduced to prove it. Credibility is a big concern during opening statements. The district attorney wants to make it seem like they are not completely focused on convicting every single person regardless of guilt. Likewise, defendant’s attorney wants to ensure they come off as defending an innocent person rather than attempting to “game the system” by letting a dangerous individual go free. Opening statements are a great opportunity to remove these common stigmas from the jurors’ minds. Essentially the opening statements provide the jury a preview of what the case is about and what they should focus on before rendering a verdict.
EXAMPLE OF AN OPENING STATEMENT IN A REAL CASE
STAGE 4 - STATE’S EVIDENCE
The lead prosecutor will start introducing evidence to demonstrate the State’s case. For the most part this is done by calling witnesses to testify and submitting physical evidence. Physical evidence might be records or different things significant to the charged wrongdoing. This procedure will represent by far most of the trial. This part of the trail varies in length it might last just a couple of days or several weeks, contingent upon the charges and kind of wrongdoing.
To present their case, the prosecuting attorney will administer the direct examination of their witnesses. This means they get to choose which witnesses to call and when to call them. They will only be able to ask the witnesses short, non-leading questions as these will help the witness convey what they personally know about the event. Defense counsel will be allowed to question the state’s witness once they have finished questioning them. This is called cross examination and is crucial in criminal cases. Defendants have a right to confront their accusers under the Sixth Amendment and cross examination satisfies this right. Counsel will usually ask very direct questions with limited scope in order to prohibit the witness from over explaining their answers. There are two reasons behind this type of questioning. First, it can challenge the witness’ credibility by showing faulty perception, bias, or untruthfulness. Second, it can showcase variations or weaknesses in the witness’ testimony. After cross examination is completed, the district attorney will be able to question the witness on redirect. After redirect, defense counsel will again be able to question the witness on re-cross.
Submitting exhibits is also an important part of these examinations. Usually, an exhibit isn’t admissible unless a witness can testify as to what the object is. This required testimony can come on either direct or cross. If an exhibit is admitted, it is usually shown to the jury. Witnesses are allowed to further explain an exhibit as well. For instance, in a case of forgery, an expert in handwriting could testify concerning how he can determine the signatures were forged. Exhibits are very significant as the jury can reevaluate these when they deliberate, they cannot do that with witness testimony.
Objections are the final part of witness examinations. An opposing party can object to testimony or evidence presented by the other party if they believe it violates law or the rules of evidence. Upon an objection being made, the lawyers will go up to the judge and discuss the offered testimony or exhibit. After hearing each side’s argument on why the evidence should or should not be admitted, the judge will rule on the admissibility of the evidence. If it is admitted, it will be submitted to the jury.
EXAMPLE OF A STATE'S EVIDENCE IN A REAL CASE
STAGE 5- DEFENDANT’S EVIDENCE
The district attorney will rest their case after their last witness. Under Section 22-3419, the defendant is now allowed to make a motion of judgement of acquittal. The premise behind this motion is that the state has failed to meet its burden of beyond a reasonable doubt on each element of the crime. As held in State v. Zamara, this motion should be denied in order to let the jury decide the case if the evidence permitted might reasonably permit a jury to render a guilty verdict against the defendant. This motion is rarely granted unless the prosecuting attorney has made a mistake while presenting their case.
If the defendant’s motion is denied or not made, they will then be able to present their own evidence. This process will be exactly like the state’s case (direct, cross, redirect, re-cross), just a reversal of the roles. The premise behind the defendant’s case is to prove a defense (i.e., self-defense) or just to present evidence that the accused didn’t commit the charged crime. Usually the defense has considerably less evidence to present and thus will take less time than the state’s case. It is quite common for the defense to not present any evidence in a case.
EXAMPLES OF DEFENDANT'S EVIDENCE IN A REAL CASE
STAGE 6 - CLOSING ARGUMENTS
After the defense has rested their case, each side will give a closing argument. The state will go first and can allot some of their time to rebut the defendant’s closing argument. Each side will discuss the admitted evidence and portray it to the jury on how they should use the evidence as well as how much weight each piece of evidence carries. Closing arguments are vital as it gives the jury guidance on how to apply the presented evidence to the matters at hand.
The state will concentrate their closing on showing each element of the crime has been adequately met. This can include explaining jury instructions which outline the crime’s elements, to the jury. The state is time pressured during their closing as they have to sufficiently argue that each element has been addressed as well as proven beyond a reasonable doubt. Further, they cannot mention the defendant did not testify if the defendant didn’t testify. The state cannot argue that the accused’s silence proves their guilt, as a defendant doesn’t have to prove their innocence and they have the right to not testify against themselves. A mistrial is usually declared if the prosecution makes these types of comments. Results of a mistrial are either retrying the case in front of a new jury or perhaps ruling in favor of the defendant.
Defense counsel has very similar goals during their closing. The defense only has to convince the jury that the state didn’t meet their burden of proof on the required elements. Often these closing will concentrate on missing pieces of evidence or inconsistencies in the state’s case. Defense counsel should constantly remind the jury of just how high the state’s burden of proof actually is. And if the defense has showcased an alternate theory of the incident and/or submitted a defense, their closing will express how the evidence proves these ideals.
The state is allowed to make a rebuttal argument after the defendant’s closing argument. The main goal of this rebuttal is to address the defense’s strongest argument as well as convey that a conviction should be the rightful outcome of the case. This is a persuasive mechanism as it is the last argument the jury will hear before they begin to deliberate.
EXAMPLES OF CLOSING ARGUMENT IN A REAL CASE
Going to trial in a criminal case is nerve racking and can be scary, having an experienced criminal defense lawyer by your side is vital to having a successful trial outcome. Always remember that you generally get one shot at going to trial, it is an unforgiving and difficult task that it rife with landmines. Being prepared for the task and devoting the time to play out all contingencies is vital.
STEP 12 – THE VERDICT
Following the closing arguments, the jury takes the baton. The jury must decide if the defendant is guilty or not guilty; sentencing will come later depending on the decision the jury makes. Having just heard the district attorney’s rebuttal closing, the last thing the jury will be told comes directly from the bench.
Jury Instructions
Before the jury begins deliberations, the judge gives them specific instructions about what they are to decide. Kansas uses “pattern instructions” for criminal cases. These instructions have been determined to accurately describe the elements of crimes, the burden of proof, and other issues that a jury needs to be instructed on. As the Kansas Supreme Court noted in State v. Gallegos, these instructions should generally be used unless the case presents special circumstances. In those cases, the trial court is permitted to vary the instructions so long as they continue to accurately state the law.
For example, look at the pattern instruction for possession of a controlled substance, 57.040. The information is brackets would be added depending on the facts of the particular case:
The defendant is charged with unlawfully possessing [name of particular drug defendant is accused of possessing]. The defendant pleads not guilty. To establish this charge, each of the following things must be proved: (1) That the defendant possessed [particular drug involved]. (2) This act occurred on or about the [date] day of [month], [year], in [name of county], Kansas.
The court would also have to define key legal terms for the jury, as these terms often have different meanings for their normal use. For the above instruction, “possessed” would need to be defined. This may seem surprising based on the common usage of the word, but as used in the context of this particular crime, the term’s normal meaning is both narrowed in parts and broadened in other parts. The jury would be instructed:
“Possession” means having joint or exclusive control over an item with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.
Thus, it is not enough to have the substance but not know it, even though in everyday language that might be within the meaning of the word. On the other hand, the defendant doesn’t have to have the substance on them. Instead, she can simply have it hidden anywhere that she has “some measure” of access or control. Here, the legal meaning has been stretched beyond what the ordinary meaning would cover. Jury instructions are key in explaining these differences to juries, though the challenge is that they must do so in an entirely neutral way.
Jury Deliberations
Following the instructions from the judge, the jury will be taken to a private room to discuss the verdict. The court’s bailiff will stand guard over this room, preventing anyone from going in or coming out. If the jury has a question or would like to see an exhibit, it may make a written request to the judge by giving it to the bailiff. Most questions asked by the jury cannot be answered for various reasons, chiefly because the jury can only consider evidence that presented during the trial in reaching its verdict. For each request, the judge and both attorneys will consider the question and formulate a response, even if that response is simply telling the jury the court cannot help.
These deliberations may take quite some time. All jurors must reach a unanimous verdict of either guilty or not guilty. If the jury deadlocks and cannot reach a unanimous decision, this results in a “hung jury” and a mistrial. The entire trial will have to be done again, including selecting a new jury. There is a pattern jury instruction that addresses deadlocking, but it can be a tricky instruction to successfully give. Instruction 68.140 and its predecessors have caused difficulty for trial courts. A deadlock instruction cannot be coercive, because the jury must decide the case based upon the facts—not the judge’s (or jurors’) desire to conclude the case. In State v. Boyd, the instruction was given after the jury reported it was deadlocked. The Kansas Supreme Court said that this was a prejudicial error, requiring the case to be retried. The lesson of Boyd is that the instruction, if given at all, should be given before deliberations again. When it is given in response to a deadlock, it can seem too aggressive, as if the judge is telling the jury it has to reach full agreement or be imprisoned in the jury room forever.
Announcing The Verdict
Once the jury has reached a unanimous decision or is incurably deadlocked, it will inform the bailiff, judge, and attorneys. The verdict will be written on a verdict form and signed by each juror. This completed verdict form will be given to the clerk of the court to read aloud. After hearing the verdict, the judge will ask the foreperson of the jury if the verdict is correct—if that is what the jury unanimously decided (or that deadlock was reached and could not be broken). Again, absent from the verdict is a sentence—that will be determined later by the judge, should the verdict be guilty. After confirming the verdict, the judge will give each attorney a very brief opportunity to examine the verdict form to ensure no mistakes were made. Section 22-3421 allows the judge to correct a defective verdict, so long as the jury approves with the changes made.
Additionally, the judge may poll the jury. This is a very limited inquiry that is aimed at ensuring the verdict is correct and unanimous. When either the district attorney or defense counsel requests, the judge must individually ask each juror to confirm that they voted for the verdict. However, as happened in State v. Cheffen, the party must request this polling promptly. Once the jury has been dismissed, it is simply too late.
Win or Lose?
If the verdict is not guilty then the case is over. There is no further process or further court dates. The Defendant simply goes home and files a petition for expungement to get rid of the arrest and court case documents. If the jury finds the defendant guilty then the case goes to the Filing Post Trial Motions phase of a criminal case.
STEP 13 – POST TRIAL MOTIONS
Following the announcement of the verdict, the defendant has the option to submit post-trial motions on a variety of topics. These are ultimately aimed at some deficiency in the verdict. These motions are exclusively available for a defendant. The state does not get to fail to carry its burden and then try again—a process referred to as double jeopardy. In some instances, the state is allowed to appeal various rulings of the trial court, but those are handled via different motions and mechanisms. Post-trial motions are especially reserved for a defendant that did not receive a fair verdict.
Motion For A New Trial
Section 22-3501 allows a defendant to motion for a new trial under some circumstances. The court will grant the motion when it is in “the interest of justice.” This vague standard showcases the large amount of discretion a court has in deciding whether or not to grant the motion. The motion can be made directly after the occurrence takes place or after the verdict has been rendered. Generally, these motions must be made quickly following trial, though that time limit may be extended in certain circumstances. The four most common grounds upon which a motion for a new trial is granted are discussed below.
Juror Misconduct: Juror misconduct can occur when a juror “goes beyond the evidence.” This can be in the form of investigating the crime scene on his own or researching the case online. At first, this may seem like activity an engaged juror should be doing—it certainly is not. Trials are controlled by rules of evidence that have evolved over hundreds of years. These rules exist today for good reasons: they keep out dangerously unreliable evidence. It’s easy to imagine a juror doing an online search of a case and finding completely false information. The rules of evidence and the rigors of trial would flush out the weaknesses in such evidence; the computer screen cannot do that. Another common example of this type of misconduct is when an outside source communicates with the jury. Again, the danger is that this information is completely unchecked. These types of misconduct can form the basis for retrying the case with a new jury.
Prosecutorial Misconduct: Prosecutorial misconduct is likely the most common reason a new trial is granted. For better or worse, district attorneys are under considerable pressure to get convictions. This can and does lead to some district attorneys incorrectly prioritizing a wrongful conviction over no conviction. The most common area in which a district attorney may commit serious misconduct are closing arguments. In State v. Magdaleno, the district attorney attacked the credibility of the defense attorney by accusing her of lying to the jury. This clearly went beyond what the jury was allowed to consider; the credibility of each witness was at issue and the jury could be asked to believe one account over the other, but attempting to paint the attorney as lying was clearly aimed at inflaming the jury into convicting based on passion. Another common example of occurs when the district attorney calls attention to the fact that a defendant does not testify. The state is not allowed to encourage the jury to make an adverse inference from the defendant exercising the Fifth Amendment. Unsavory attorneys may attempt to subtlety hint at this fact, trying to get the jury to decide the case based not upon the evidence they have heard, but they evidence they have not heard. Experienced defense counsel is always prepared for this “indirect” adverse inference and courts are willing to grant a new trial when such statements are made.
Highly Prejudicial Errors: No trial is conducted perfectly: errors will happen. However, when an error is so dramatic that it costs the defendant a fair trial in some way, the court can order a new trial in response. In State v. Phillips, the state was ordered to produce taped witness interviews when the witnesses testified to very different facts on the stand. The district attorney claimed to not have the tapes at trial and the judge decided that the varying testimony given did not have to be struck. The Kansas Supreme Court disagreed, and remanded the case for a new trial. The lack of these tapes was so damning to the defendant’s case that the trial was rendered unfair. This is a high standard. Thus, most instances of error, particularly when dealing with ruling based on evidence, will not justify a new trial.
Newly Discovered Evidence: A final reason for granting a new trial is the discovery of new evidence by the defendant. This reason extends the period of time in which a defendant can make a motion for new trial, allowing the motion anytime within two years of final judgment. In State v. Smith, the court set out three things that must be proven to be granted a new trial on these grounds. First, the evidence could not have been found by reasonable investigation on the defendant’s part. Second, the new evidence must be show to have a “reasonable probability” of changing the result of the trial. Though this second fact may sound manageable, it is actually fairly difficult to establish. For example, the defendant in Smith failed to establish this fact due to the other evidence which supported the state’s version of events. To put it another way, the court has stated that discovering the new evidence does not automatically entitle the defendant to a jury to weigh that evidence. Instead, the court must be convinced that the evidence could overcome all the other evidence presented to change the result. Thus, newly discovered evidence does not commonly result in new trials.
Arrest of Judgment: Another post-trial motion is the motion for arrest of judgment. This motion seeks to prevent the judgment from being entered by the court following the jury’s verdict. The grounds of this request are very narrow: either the charging documents fail to state a recognized crime or the court lacked jurisdiction over the crime. This motion is a rare bird indeed, as these are among the first things experienced defense counsel will check upon a defendant being charged. Adding to the rarity is the prohibition outlined in State v. Sims: the evidence presented at trial is not considered in deciding the motion. Instead, only the charging documents—the first documents filed in the case—can create the grounds necessary to succeed on this motion.
Filing Post Trial Motions is a task best left to an experienced criminal defense team. You generally only have one shot at getting a new trial if there was an error the expertise in crafting the motions are vital to success.
STEP 14 – PREPARING FOR SENTENCING
A guilty verdict rendered by a jury is only half of the judgment against the defendant. The trial court must determine the sentence to be imposed as well. Kansas utilizes a sentencing system based upon the severity of the crime convicted of and past criminal convictions of the defendant. These two factors are plugged into a sentencing grid to produce a presumptive sentence length and disposition of either imprisonment or probation. The judge may deviate from the presumptive sentence when he or she finds substantial and compelling circumstances warrant it. However, in order to present evidence of such circumstances, those facts must be discovered. This is accomplished through presentencing investigation.
Presentencing Report
To understand the investigation, it is helpful to start with what the court is looking for. Section 21-6813 outlines the requirements of a presentence investigation report. The report has to include detailed information about previous convictions of the defendants. Specifically, the factual circumstances of that crime, the classification of the offense on the “severity scale,” and any victim report from those crimes. This information is all used to establish the “criminal history,” component used with the sentencing grid. A defendant is also allowed to present his or her side of each conviction for the court’s consideration. The report may also include a risk assessment in the form of Level of Service Inventory-Revised (LSI-R) report, drug and alcohol report, and psychological evaluation.
Investigation
A court services officer will conduct the investigation and ultimately prepare the presentence report. This task is assigned to a third-party in an attempt to achieve a neutral, fact-based report. The attorneys will have the opportunity to argue about such facts at a sentencing hearing once they have been found and presented in the report. As the court noted in State v. Wood, the officer is given wide latitude in gathering the necessary information. This includes communication with either the state or defendant, witnesses, and record custodians. Unlike during the preparation for trial, each side is not entitled to be present for each of these interactions. So long as the results of such interactions are made known to each side, the officer can investigate as he/she sees fit.
A key component of the report is the criminal history worksheet. This document seeks to establish the required information regarding prior convictions for the defendant. The general rule is that all convictions apply in determining a criminal history score. Diversions are special kinds of plea agreements for driving while intoxicated charges that result in a dismissal of charges rather than a guilty plea. Diversions will not count unless the current charge being sentenced for involves driving while intoxicated, such as involuntary manslaughter or a subsequent DUI. The officer will generally support each conviction with a copy of the judgment. Necessary summaries and supporting documents, such as a victim’s report, will also be included.
The officer will also gather various other information about the defendant. This includes basic “pedigree” information, such as date of birth, social security number, and address, as well as more detailed law enforcement information such as KBI number (number assigned to an individual upon his or her first entry into Kansas’s criminal records database). A DNA sample will also be obtained from the defendant during this investigation process. Additionally, family and employment histories will be collected, as well as any connections the defendant has with his or her particular community. All this information gathering is relatively noncontroversial, but is still necessary for a complete report.
Finally, in appropriate situations, mental examinations of a defendant may take place. These examinations are performed in an effort to determine if a defendant needs special treatment while incarcerated. These examinations are proper considerations for a sentencing court, even though they lack the formal warnings required in police investigation activity. Thus, in State v. Schaeffer, the court allowed statements made during such an evaluation to be considered in sentencing the defendant without the need for any Miranda or other warnings. The distinction the court honed in on was the evidence’s use to determine sentencing, rather than to determine guilt.
Submitting The Report
After the investigation is complete, the officer turns in the sentencing report to the court. This document does become part of the public court records, with only very specific sections being redacted. Each side may challenge the information in the report on various grounds before the court. The judge will ultimately hear the arguments and determine if portions of the report should be struck and not considered in sentencing the defendant.
The difference in a person's criminal history score can dramatically impact the possible punishment range that a person is facing during sentencing. It is important that you sit down with an experienced criminal defense lawyer to determine if the score is accurate or if any challenges to prior convictions are warranted.
STEP 15 – THE LSI-R (LEVEL OF SERVICE INVENTORY-REVISED)
As part of the presentence investigation, a risk assessment must be performed on the defendant. Kansas currently utilizes the Level of Service Inventory-Revised (“LSI-R”) as its risk assessment instrument. The purpose of these assessments is to determine the risk a defendant poses to society through recidivism—committing another crime—and the level of need the defendant requires to become rehabilitated. The LSI-R is relied upon in determining what sentence to impose. This includes whether a defendant is allowed to be place on probation, in prison, or under the supervision of community corrections.
What Is The LSI-R?
The LSI-R is a risk assessment test that is widely used by many states in determining sentence length, disposition, and treatment. It may be surprising to learn that the LSI-R was developed by a private company, Multi-Health Systems, Inc. States and various research groups have found the test to be successful enough to warrant its use in most sentencing determinations. Currently, Kansas requires a LSI-R to be completed for every felony conviction and by the court’s order in some misdemeanor convictions.
The focus of the instrument is on ten areas of interest, referred to as “domains.” Each category is ranked in importance to recidivism and the test focuses on these domains more heavily in general. The domains, in order from greatest importance to least, are:
Criminal History
Education/Employment
Alcohol/Drug Problems
Companions
Emotional/Personal
Family/Marital
Attitudes/Orientation
Accommodation
Leisure/Recreation
Financial
The test not only focuses on each domain individually, but also how they interact with one another. For example, a defendant with a drug problem, solely friends that use drugs, little family support, and substantial finances would be considered a high risk factor for recidivism relating to a drug offense.
The results of the test are converted into domain scores and then a total score. These scores are then analyzed by an individual possessing some manner of advanced education in psychology. This individual does not need to be a psychologist or even mental health professional, however. The test is designed to allow the person administering the test to use the scores but also make recommendations outside of what the scores suggest. The scores and the recommendations go to both a prediction of the defendant’s recidivism and the best method of rehabilitating and correcting the defendant’s behavior.
Court’s Use Of The LSI-R
Kansas courts receive the LSI-R results as part of the presentence report. The other details of that report are discussed on another page. The court begins sentencing using Kansas’ sentencing grid. The presumptive sentence is located using the crime’s severity level and the defendant’s criminal conviction history from the presentence report. The court then determines if any factors warrant mitigating—altering in the defendant’s favor—or enhancing the defendant’s presumptive sentence. The LSI-R is particularly helpful in this area, as it offers some insight into why a defendant may commit another crime and how best to help the defendant return to normal, everyday life after a conviction. For example, Section 75-5291 requires the court to place defendants that are scored as “moderate risk, high risk, or very high risk” on the LSI-R in a community correctional services program.
Refusal To Take LSI-R
The LSI-R is relatively new. As such, the law on the instrument is still developing. Some attorneys have argued that the LSI-R may be unconstitutional, as it attempts to force the defendant to self-incriminate in violation of the Fifth and Fourteenth Amendments. However, it is likely that Kansas courts would draw the same distinction they have in other contexts of sentencing examinations. In State v. Schaeffer, the court determined that a mental examination—even one that contained incriminating statements made by the defendant—could be used during sentencing because it was being considered as a factor for punishment rather than guilt. This is a fine line, but one that has seemed to hold up to Constitutional challenges thus far. One issue that has been addressed by the Kansas courts is a defendant’s refusal to participate in the LSI-R. In State v. Lawson, the defendant refused to take part in his examination. The Kansas Court of Appeals determined that the sentencing court could err on the side of caution by sentencing Lawson to community correction supervision, rather than probation. Thus, refusing to take the LSI-R was treated as having “negative” results on the assessment. The court did leave open a small window in Lawson, noting that had the defendant based his refusal on his Fifth Amendment rights, the court would have to do a more detailed analysis of the use of the absence of the LSI-R results.
STEP 16 – WHAT HAPPENS AT SENTENCING AND HOW DOES SENTENCING WORK?
The final step in a criminal prosecution is the sentencing of the defendant. Unlike the trial, the judge alone will determine what the sentence will be. The judge will have the aid of the presentencing report in determining the length and disposition (probation or imprisonment) of the imposed sentence. The judge will also be able to utilize the sentencing grid required by Kansas in arriving at the sentence.
Sentencing Hearing
Sentencing hearings take place in open court, just as trials do. The district attorney, defendant, and defense counsel will all be present. The structure of the hearing is somewhat similar to the trial, with the state addressing the court first. The district attorney will speak directly to the judge, pointing out evidence from the trial and sentencing report to argue for a sentence the state deems appropriate. Next, defense counsel will address the court directly, pointing to his own evidence that supports the defendant’s proposed sentence. Next, in cases in which there was a victim, either the victim or the victim’s family will have the opportunity to make statements to the court. Finally, the defendant will be allowed the last word for her- or himself. This may be the first and only time a defendant speaks in open court. Unlike testifying at trial, there is no advantage to foregoing this opportunity. After the defendant has spoken, the judge will announce the sentence. This is generally done directly following the presentations or after a very short recess. In longer, complex cases the judge may take a day or so to determine a sentence, but even in these cases this is rare.
Sentencing Grid
When determining the sentence, the judge is not painting on a blank canvas. Instead, Kansas has enacted sentencing grids which generally dictate that a sentence must fall within a range of months. The grid will also provide a disposition of either imprisonment or probation. Together, these are called the presumptive sentence. To arrive at a presumptive sentence, the judge must input two numbers into the grid. The first is the crime severity level of the convicted offense. Crimes are given a severity level between one and ten, with one being the most severe. The defendant is also placed into a category based upon his or her prior convictions, labelled A through I. I is the least severe category, covering defendants with one previous misdemeanor conviction or no prior convictions at all. The category increases based upon the number of person felony, nonperson felony, and misdemeanor convictions the defendant has. Using these two numbers, the judge will be given a presumptive sentence that indicates a disposition and duration range.
Certain facts will be viewed as “aggravating factors” and require that the court impose a harsher sentence. These are generally acts that, while not necessarily illegal, the Kansas legislature wants to be taken into account during sentencing. For example, when a firearm is used in committing a felony, the presumptive sentence will automatically be for imprisonment despite where the offense falls on the sentencing grid. Thus, in State v. George, the defendant was convicted of battery for hitting his victim with an unloaded gun. This caused the defendant’s presumptive probation to be upgrade to presumptive imprisonment.
Conversely, certain facts are considered “mitigating factors” that reduce the disposition or duration of a presumptive sentence. These are generally in the form of alternatives to imprisonment, such as alcohol or drug treatment programs. However, these are often available based upon particular facts, but ultimately left to the discretion of the sentencing judge. The idea behind this discretion is that space in treatment programs are limited. The legislature trusts that the trial judge will be able to make a determination from the evidence, presentencing report, and statements during the sentence hearing. This discretionary power allows for the best method of rationing out the limited bed spaces for these programs.
Departures
A judge is not required to order the presumptive sentence in every case. A departure can be dispositional, placing a defendant on probation rather than in prison. It can also be durational, granting a sentence length outside the recommended range. A defendant can motion the court for a downward departure during the sentencing hearing. The judge must find “substantial and compelling” reasons to depart from the presumptive sentence and will note these reasons when announcing the departure. These reasons can include the defendant’s amenability to rehabilitation (as in State v. Bolden), acceptance of responsibility for the crime (as in State v. Bird), or the defendant caused only slight harm compared the usual type of crime (as in State v. Warren).
On the other hand, the state can request an upward departure. Just as with downward departures, this can change either the disposition, duration, or both. Again, the standard is “substantial and compelling” reasons to justify the departure. Reasons to grant upward departures include crimes motivated by hate towards a race, gender, or religion (as in State v. Stawski).
Concluding Hearing
After hearing all relevant evidence and requests for departures, the judge will announce the sentence. If a departure was granted, the judge will also note the substantial and compelling reasons for departing. This announcement will be made in open court and on the record. The judge will inform the defendant of the right to appeal before concluding the hearing and the case. If the presumptive sentence was for imprisonment, the defendant will be taken into custody to await transport to prison. If the sentence was for presumptive probation or treatment, the defendant will be required to make arrangements with the proper entities for supervision or enrollment in the program.