KANSAS OFFICE of
  REVISOR of STATUTES

  

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22-2616. Change of venue. (1) In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.

(2) When a case is ordered transferred to another county or district the court shall certify the order of transfer to the departmental justice who shall designate another county or district to which the proceeding shall be transferred.

(3) When a transfer is ordered the clerk of the court where the case is pending shall transmit to the clerk of the court to which the case is transferred all papers in the case or duplicates thereof and any appearance bond taken, and the prosecution shall continue in the court to which the transfer is ordered.

(4) When any case is transferred to another county under this section the responsibility for prosecution of the case shall remain with the original prosecuting attorney, or his successor.

(5) When any case is transferred to another county under this section all taxable costs in such case shall be taxed to the county in which the case originated and such county shall be liable for the payment thereof.

The provisions of this section shall apply only to the prosecution of trials and shall not be applicable to preliminary proceedings.

History: L. 1970, ch. 129, § 22-2616; L. 1974, ch. 151, § 1; July 1.

Source or Prior Law:

62-1316, 62-1317, 62-1318, 62-1319, 62-1320, 62-1332, 62-1337, 63-313.

Cross References to Related Sections:

Rights of accused, see Kansas Constitution, Bill of Rights, § 10.

Law Review and Bar Journal References:

"Fair Trial/Free Press: The Court's Dilemma," Richard A. Boeckman and Steven R. Smith, 17 W.L.J. 125, 130, 135 (1977).

"Change of Venue in the Criminal Case," J. Roy Holliday, Jr., and Steven L. Opat, 11 J.K.T.L.A. No. 5, 9 (1988).

"The Role of Change of Venue in an Electronic Age," Thomas Beisecker, Kan. J.L. & Pub. Pol'y Vol. 4, No. 3, 81, 82 (1995).

"Criminal Procedure Review: Survey of Recent Cases," 44 K.L.R. 895 (1996).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

Attorney General's Opinions:

County attorney; representation in alcoholism treatment petitions; change of venue; costs. 88-28.

County attorneys; prosecution in another venue; additional compensation. 88-50.

CASE ANNOTATIONS

1. Change of venue denied; evidentiary matters demonstrating inability to secure fair trial lacking. State v. Hill, 211 Kan. 239, 243, 505 P.2d 704.

2. Motion properly denied; evidence showing inability to secure fair trial lacking; publication of news articles not prejudice per se. State v. Randol, 212 Kan. 461, 463, 513 P.2d 248.

3. Publication of newspaper articles did not establish prejudice per se; no abuse of discretion in denying change of venue. State v. Cameron & Bentley, 216 Kan. 644, 646, 533 P.2d 1255.

4. Newspaper publicity before trial did not per se justify change of venue; denial of motion for change proper. State v. McCorgary, 218 Kan. 358, 367, 543 P.2d 952.

5. Publications in local newspaper did not per se establish prejudice. State v. Gander, 220 Kan. 88, 92, 551 P.2d 797.

6. Media publicity alone does not establish prejudice per se; motion for change denied. State v. Porter, 223 Kan. 114, 117, 574 P.2d 187.

7. Motion for change must be supported by demonstrable evidence; motion denied. State v. Gilder, 223 Kan. 220, 223, 574 P.2d 196.

8. Conviction of murder; no abuse of discretion in refusing to grant change of venue. State v. Sanders, 223 Kan. 273, 279, 574 P.2d 559.

9. Denial of motion for change of venue because of pretrial publicity upheld. State v. Cates, 223 Kan. 724, 730, 576 P.2d 657.

10. No motion for change filed; no showing substantial rights violated. State v. Glazer, 223 Kan. 351, 357, 574 P.2d 942.

11. Denial of motion for change of venue upheld; burden of proof upon defendant to show prejudice; denial of funds to conduct opinion poll upheld. State v. May, 227 Kan. 393, 394, 397, 607 P.2d 72.

12. Cited; defense made no motion for change of venue; verdicts not delivered under influence of passion and prejudice. State v. Cutshall, 4 Kan. App. 2d 240, 244, 604 P.2d 288.

13. Change of venue denied; determination within sound discretion of trial court and will not be disturbed without showing prejudice to substantial rights of defendant. State v. Allen, 4 Kan. App. 2d 534, 535, 609 P.2d 219.

14. Burden on movant to show prejudice by demonstrable reality, not speculation; news articles alone not sufficient for change of venue. State v. Shaffer, 229 Kan. 310, 320, 624 P.2d 440.

15. Change of venue will be granted when defendant can show prejudice has reached community to degree that impartial jury impossible. State v. Shaffer, 229 Kan. 310, 320, 624 P.2d 440.

16. Change of venue denied; prejudice to defendant by publicity not so great as to deny fair trial. State v. Salem, 230 Kan. 341, 343, 634 P.2d 1109 (1981).

17. No abuse of discretion in denial of motion to change venue in murder trial; constitutional aspects discussed. State v. Miesbauer, 232 Kan. 291, 295, 296, 654 P.2d 934 (1982).

18. Trial court properly denied motion for change of venue when evidence showed nothing to indicate that defendant could not receive fair trial. State v. Hill, 233 Kan. 648, 650, 664 P.2d 840 (1983).

19. Defendant must show, as demonstrable reality, that prejudice exists in community. State v. Taylor, 234 Kan. 401, 404, 673 P.2d 1140 (1983).

20. Guidelines on change of venue reviewed; funds for public survey on issue (K.S.A. 22-4508) considered. State v. Haislip, 237 Kan. 461, 485, 701 P.2d 909 (1985).

21. Grounds for venue change examined; media publicity alone insufficient, nor does inclusion of identical conclusory type affidavits establish prejudice. State v. McKibben, 239 Kan. 574, 579, 722 P.2d 518 (1986).

22. Cited; sufficiency of prejudice to justify change of venue examined. State v. Hunter, 241 Kan. 629, 634, 740 P.2d 559 (1987).

23. Question of venue change in relation to companion case discussed. State v. Dunn, 243 Kan. 414, 424, 758 P.2d 718 (1988).

24. Principles underlying motion for change of venue examined. State v. Goss, 245 Kan. 189, 194, 777 P.2d 781 (1989).

25. Rules applicable to motion for change of venue, showing of sufficient prejudice examined. State v. Bierman, 248 Kan. 80, 87, 805 P.2d 25 (1991).

26. Pretrial publicity examined where main charges involved first-degree murders where bodies of victims never found. State v. Grissom, 251 Kan. 851, 927, 840 P.2d 1142 (1992).

27. Defendant's burden regarding pretrial publicity, possible contamination of prospective jurors in voir dire process examined. State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992).

28. Trial court denial of change of venue motion based on pretrial publicity not an abuse of discretion. State v. Anthony, 257 Kan. 1003, 1012, 898 P.2d 1109 (1995).

29. Change of venue denied; prejudice to defendant caused by pretrial publicity not enough to deny fair trial. State v. Swafford, 257 Kan. 1023, 1034, 897 P.2d 1027 (1995).

30. No abuse of discretion in denial of change of venue where publicity not so great as to deny fair trial. State v. Butler, 257 Kan. 1043, 1056, 897 P.2d 1007 (1995).

31. Change of venue based on pretrial publicity denied; publication of newspaper articles did not establish prejudice. State v. Brown, 258 Kan. 374, 389, 904 P.2d 985 (1995).

32. Motion for change of venue denied where defendant failed to show substantial prejudice resulting from pretrial publicity. State v. Shannon, 258 Kan. 425, 430, 905 P.2d 649 (1995).

33. Defendant failed to meet burden of proof that community prejudice would deny fair trial. State v. Knighten, 260 Kan. 47, 56, 917 P.2d 1324 (1996).

34. Trial court's denial of change of venue motion based on pretrial publicity upheld. State v. Shaw, 260 Kan. 396, 405, 921 P.2d 779 (1996).

35. Change of venue based on potential jurors ties to law enforcement and prison properly denied. State v. Clemons, 261 Kan. 66, 69, 929 P.2d 749 (1996).

36. Defendant must show prejudice exists in community, not as matter of speculation, but as demonstrable reality. State v. Jackson, 262 Kan. 119, 128, 936 P.2d 761 (1997).

37. Burden is on defendant to show prejudice is significant for a venue change. State v. Carr, 300 Kan. 1, 80, 331 P.3d 544 (2014).

38. Trial court's denial of a motion to change venue did not abuse its discretion where some factors weighed in favor of transferring venue and some weighed against, and record did not reveal any difficulties in selecting a jury. State v. Longoria, 301 Kan. 489, 512, 343 P.3d 1128 (2015).


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