Printable Format22-3213. Demands for production of statements and reports of witnesses. (a) In any criminal prosecution brought by the state of Kansas, no statement or report in the possession of the prosecution which was made by a state witness or prospective state witness, other than the defendant, shall be the subject of subpoena, discovery or inspection until such witness has testified on direct examination at the preliminary hearing or in the trial of the case.
(b) After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement, as defined in subsection (d), of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defense for examination and use by the defense.
(c) If the prosecution claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the prosecution to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defense for use by the defense. If, pursuant to such procedure, any portion of such statement is withheld from the defense and the defense objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the prosecution and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defense pursuant to this section, the court in its discretion, upon application of the defense, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by the defense and preparation for its use in the trial.
(d) The term "statement," as used in subsections (b) and (c) in relation to any witness called by the prosecution means:
(1) A written statement made by such witness and signed or otherwise adopted or approved by such witness; or
(2) a stenographic, mechanical, electrical or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by such witness and recorded contemporaneously with the making of such oral statement.
History: L. 1970, ch. 129, § 22-3213; L. 2014, ch. 34, § 2; July 1.
Law Review and Bar Journal References:
Duty of prosecution to disclose evidence, Michael A. Barbara, 10 W.L.J. 54, 57 (1970).
Exemption of evidence from discovery discussed in pre-trial discovery and procedure section of symposium on criminal law revision, Michael G. Norris, 18 K.L.R. 755, 763, 767 (1970).
Section patterned after 18 U.S.C. § 3500, Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 167 (1970).
Reasons for delay in the courts, George S. Reynolds, 12 W.L.J. 12, 16 (1972).
Survey of criminal procedure, Cynthia Hartman, 15 W.L.J. 350, 352 (1976).
"Survey of Kansas Law: Criminal Law and Procedure," Keith G. Meyer, 27 K.L.R. 391, 428 (1979).
"A Proposal to Permit "Reciprocal Jencks Discovery" in Kansas," Emil A. Tonkovich, 33 K.L.R. 95, 96 (1984).
Survey of Recent Cases, 43 K.L.R. 983 (1995).
Criminal Procedure Edition, 47 K.L.R. 937 (1999).
"Criminal Procedure Survey of Recent Cases," 54 K.L.R. 895 (2006).
"Prosecutors' Discovery and Disclosure Requirements After Lafler v. Cooper," Kimberly Knoll, 52 W.L.J. 97 (2012).
CASE ANNOTATIONS
1. Subsection (3) cited; trial court's examination of police report in camera challenged as influencing trial court; no error. State v. Edwards, 209 Kan. 696, 698, 498 P.2d 53.
2. No error in refusal to permit examination of statements hereunder where no request directed to trial court. State v. Wigley, 210 Kan. 472, 478, 502 P.2d 819.
3. Cited; prior law in accord with new discovery procedure. State v. Hill, 211 Kan. 287, 293, 507 P.2d 342.
4. Refusal to allow defendant to examine field notes of investigating officer was error. State v. Mans, 213 Kan. 36, 40, 515 P.2d 810.
5. Police officer called by state testifying as to facts revealed by investigation is witness within meaning of subsection (2). State v. Stafford, 213 Kan. 152, 155, 156, 157, 158, 159, 515 P.2d 769. Opinion modified and rehearing denied: 213 Kan. 585, 518 P.2d 136.
6. Applied; motion to produce evidence of persons not called as witnesses denied. State v. Ritson, 215 Kan. 742, 749, 529 P.2d 90.
7. Applied; conviction under K.S.A. 21-3701; due process not violated; evidence withheld; oversight. State v. Kelly, 216 Kan. 31, 35, 531 P.2d 60.
8. Construed; error for trial court to restrict defendant's right to discovery of statements or reports of complainant. State v. Humphrey, 217 Kan. 352, 355, 356, 357, 537 P.2d 155.
9. Court did not improperly limit discovery and inspection of prosecution evidence. State v. Campbell, 217 Kan. 756, 782, 539 P.2d 329.
10. Discovery hereunder is an alternative discovery procedure and does not deprive defendant of right to subpoena duces tecum under K.S.A. 22-3214. State v. Adams, 218 Kan. 502, 545 P.2d 1134.
11. No abuse of discretion in striking testimony of witnesses where written statements lost by prosecution. State v. Wilkins, 220 Kan. 735, 736, 737, 738, 741, 556 P.2d 424.
12. Testifying from notes which had not been delivered to defendant's counsel not written statement; this section governed. State v. Bircher, 2 Kan. App. 2d 15, 17, 573 P.2d 1128.
13. Section construed; typewritten transcripts of law officer's original reports admissible when originals destroyed. State v. Eubanks, 2 Kan. App. 2d 262, 263, 577 P.2d 1208.
14. Witness allowed to testify; defendant denied right to examine statements; right to cross-examination unimpaired. State v. Pierson, 222 Kan. 498, 503, 504, 565 P.2d 270.
15. Reversible error for prosecution to refuse to produce field notes. State v. Johnson and Taylor, 223 Kan. 119, 124, 126, 573 P.2d 595.
16. Notes concerning pretrial testimony did constitute "statement"; denial of request for production documents upheld. State v. Smallwood, 223 Kan. 320, 321, 323, 324, 325, 574 P.2d 1361.
17. No error in refusal to provide defendant with unsigned lay witnesses' "statements". State v. Watie, Heard and Heard, 223 Kan. 337, 345, 574 P.2d 1368.
18. Production order concerning change in testimony issued; conviction of conspiracy to sell cocaine affirmed. State v. Glazer, 223 Kan. 351, 357, 574 P.2d 942.
19. Trial court in murder prosecution erred in ordering defendant's counsel to produce statements of witnesses and reports of investigators; not prejudicial under circumstances of case. State v. Sandstrom, 225 Kan. 717, 724, 725, 727, 595 P.2d 324.
20. Cited; no error in allowing memoranda to refresh recollection of witness. State v. Wright, 4 Kan. App. 2d 196, 200, 603 P.2d 1034.
21. Preliminary hearing not required in probation revocation proceedings where probationer not in custody pending hearing. State v. Malbrough, 5 Kan. App. 2d 295, 296, 297, 615 P.2d 165.
22. Trial court did not abuse discretion in refusing defendant the statement of a codefendant. State v. Moore, 229 Kan. 73, 82, 622 P.2d 631.
23. Machine readouts produced while testing substances are not statements as defined by this section. State v. Bright, 229 Kan. 185, 188, 623 P.2d 917.
24. Testimony of a tape recorded description of a suspect not allowed into evidence because the recording was destroyed before discovery by defendant, held proper. State v. Tunstall, 8 Kan. App. 2d 76, 77, 78, 79, 80, 651 P.2d 19 (1982).
25. Provisions hereunder, along with K.S.A. 22-2902a regarding forensic examiner, provide defendant with constitutional protection at preliminary hearing. State v. Sherry, 233 Kan. 920, 930, 931, 667 P.2d 367 (1983).
26. Cited in holding review under K.S.A. 22-3603 permitted where rulings may substantially impair state's ability to prosecute case. State v. Newman, 235 Kan. 29, 34, 35, 680 P.2d 257 (1984).
27. Factors to be considered in ruling on motion to strike testimony for failure to comply with section. State v. Myers, 10 Kan. App. 2d 266, 271, 272, 697 P.2d 379.
28. Cited; right of access to prospective witnesses, compelling submission to interview examined. State v. Barncord, 240 Kan. 35, 44, 726 P.2d 1322 (1986).
29. Cited; question of prosecutorial misconduct examined where supplemental report surfaced the night before testimony of state witness. State v. Ruebke, 240 Kan. 493, 504, 731 P.2d 842 (1987).
30. Witnesses or documentary evidence may be used in rebuttal regardless of previous endorsement or discovery if outside scope of statute. State v. Trotter, 245 Kan. 657, 783 P.2d 1271 (1989).
31. Imposition of sanctions upheld where state failed to comply with order to produce certain information about confidential informant. State v. Clovis, 248 Kan. 313, 315, 807 P.2d 127 (1991).
32. Trial court's refusal to allow testimony of three unendorsed defense witnesses examined. State v. Coleman, 253 Kan. 335, 347, 856 P.2d 121 (1993).
33. Police officers report not discoverable until officer testifies at preliminary hearing. State v. Nuessen, 23 Kan. App. 2d 456, 460, 461, 933 P.2d 155 (1997).
34. A defendant is not barred in a preliminary hearing from cross-examining witnesses' credibility. State v. Stano, 284 Kan. 126, 144, 159 P.3d 931 (2007).
35. The district court failed to comply with the statutory requirements in providing the defendant personal copies of discovery and witness statements. State v. Marks, 297 Kan. 131, 298 P.3d 1102 (2013).
36. At the time of crime, section required providing the defendant personal copies of discovery and witness statements; amendments to statute do not apply retroactively. State v. Willis, 51 Kan. App. 2d 971, 981, 358 P.3d 107 (2015).
37. Statute does not permit post-conviction discovery in a criminal case. State v. Marks, 313 Kan. 717, 721, 490 P.3d 1160 (2021).