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22-3403. Method of trial of felony cases. (1) The defendant and prosecuting attorney, with the consent of the court, may submit the trial of any felony to the court. All other trials of felony cases shall be by jury.

(2) A jury in a felony case shall consist of twelve members. However the parties may agree in writing, at any time before the verdict, with the approval of the court, that the jury shall consist of any number less than twelve.

(3) When the trial is to a jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury.

History: L. 1970, ch. 129, ยง 22-3403; July 1.

Source or Prior Law:

62-1401.

Law Review and Bar Journal References:

Jury's power to return a criminal verdict contrary to the law and facts, 13 W.L.J. 129, 131 (1974).

"Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas," Carol A. Beier, 44 W.L.J. 275 (2005).

"Elect or Instruct: Presenting Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials," Scott R. Ediger, 74 J.K.B.A. No. 5, 28 (2005).

"Criminal Procedure Survey of Recent Cases," 54 K.L.R. 983 (2005).

Criminal Procedure Survey, 55 K.L.R. 797 (2007).

Criminal Procedure Survey, 56 K.L.R. 810 to 813 (2008).

CASE ANNOTATIONS

1. Cited; parties may agree in writing to fewer than 12 members on a jury; relation to 12-member jury in civil cases. Bourne v. Atchison, Topeka and Santa Fe Railway Company, 209 Kan. 511, 514, 497 P.2d 110.

2. Subsection (3) cited in appeal on question reserved; function of jury discussed in disapproving patterned jury instruction. State v. McClanahan, 212 Kan. 208, 210, 216, 510 P.2d 153.

3. No right to have jury trial reinstated after voluntary waiver; conviction of aggravated burglary and robbery upheld. State v. Lawrence, 216 Kan. 27, 28, 530 P.2d 1232.

4. Failure to advise of right to trial by jury; no waiver; conviction reversed. State v. Irving, 216 Kan. 588, 533 P.2d 1225.

5. Mentioned; defendant after conviction not relieved from prior stipulation as to manner of selecting juror. State v. Bennett, 222 Kan. 358, 360, 564 P.2d 540.

6. Cited; one-day continuance during trial proceedings did not prejudice defendant's rights. State v. Nelson, 223 Kan. 251, 252, 573 P.2d 602.

7. Felony tried by jury unless defendant, prosecution and court agree to waiver; two of three insufficient. State v. Siver, 237 Kan. 569, 571, 701 P.2d 699 (1985).

8. Accused, not attorney, has right to make decision about trial by less than 12-person jury. State v. Hood, 242 Kan. 115, 125, 744 P.2d 816 (1987).

9. Jury instruction and jury form not requiring unanimous decision nor theory on first degree murder (K.S.A. 21-3401) examined. State v. Hartfield, 245 Kan. 431, 445, 781 P.2d 1050 (1989).

10. Defendant personally, and not counsel, as having the right to assent to a jury less than 12 noted. State v. Roland, 15 Kan. App. 2d 296, 297, 807 P.2d 705 (1991).

11. Whether written waiver of jury determination of hard 40 sentence is substitute for judicial inquiry examined. State v. Gideon, 257 Kan. 591, 597, 894 P.2d 850 (1995).

12. Contention that deliberating juror's dismissal due to belief of case outcome constitutionally improper recognized; verdict must be unanimous. State v. Cheek, 262 Kan. 91, 108, 936 P.2d 749 (1997).

13. Trial court denial of defendant's request for bench trial upheld. State v. Perry, 266 Kan. 224, 226, 968 P.2d 674 (1998).

14. Defendant must be advised of right to jury trial on felony charges, and must waive right, either in writing or on the record. State v. Larraco, 32 Kan. App. 2d 996, 93 P.3d 725 (2004).

15. Unanimity instruction not required since case involved multiple items of evidence, not multiple acts. State v. Unruh, 281 Kan. 520, 527, 529, 133 P.3d 35 (2006).

16. Criminal defendant has right to a unanimous jury verdict; de novo review of unanimity issues by appellate court. State v. Dayhuff, 37 Kan. App. 2d 779, 784, 158 P.3d 330 (2007).

17. Cited; no error in premeditated first degree murder case in denying jury instructions on lesser included offenses. State v. Henson, 287 Kan. 574, 582, 197 P.3d 456 (2008).

18. Convictions reversed for district court's failure to advise defendant of his right to a jury trial. State v. Bowers, 42 Kan. App. 2d 739, 216 P.3d 715 (2009).

19. Defendant's waiver of the right to a jury trial will not be presumed from a silent record. State v. Raikes, 49 Kan. App. 2d 681, 313 P.3d 94 (2013).


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