2019 Criminal Procedure Survey Archive
Dec. 2019
"You Plead Insanity, I Plead Insanity, We All Plead Insanity: United States Supreme Court Reviews Whether Lack of an Insanity Defense is Unconstitutional
Dec. 21, 2019
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Forum Post
Police Officers Exceed Scope of Welfare Check
Dec. 13, 2019
Did a police officer exceed the scope of a permissible welfare check when he detained the person for whom the welfare check was called after he determined she did not need assistance?
Did a police officer exceed the scope of a permissible welfare check when he detained the person for whom the welfare check was called after he determined she did not need assistance?
Oct. 2019
Searching for the Seriously Injured
Dec. 13, 2019
The emergency aid exception to the Fourth Amendment’s bar on warrantless searches requires an objectively reasonable belief that someone injured is inside. Can officers comply with this prong if they do not ask clarifying questions to people at the scene?
The emergency aid exception to the Fourth Amendment’s bar on warrantless searches requires an objectively reasonable belief that someone injured is inside. Can officers comply with this prong if they do not ask clarifying questions to people at the scene?
Updated Transitional Release Requirements
Oct. 31, 2019
Is the State required to prove “serious difficulty in controlling behavior,” when arguing a person does not meet the qualifications for transitional release?
Is the State required to prove “serious difficulty in controlling behavior,” when arguing a person does not meet the qualifications for transitional release?
Retroactively Applying Limited Fact Finding for Out of State Prior Convictions to Illegal Sentence Challenges
Oct. 31, 2019
Should limited fact finding for out of state prior convictions to illegal sentence challenges apply retroactively?
Should limited fact finding for out of state prior convictions to illegal sentence challenges apply retroactively?
“Reckless Disregard for Causing Fear” is Unconstitutionally Over Broad
Oct. 31, 2019
Is the Kansas criminal threat statute, which allows conviction if a person makes a threat in reckless disregard of causing fear, constitutionally over broad?
Is the Kansas criminal threat statute, which allows conviction if a person makes a threat in reckless disregard of causing fear, constitutionally over broad?
Oct. 2019
U.S. Supreme Court to Review Whether an Officer Can Initiate a Traffic Stop Based Solely upon the Status of the Registered Owner
Oct. 25, 2019
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Forum Post
Party Benefitting from Erroneous Judicial Comment Bears Burden
Oct. 14, 2019
A district judge made an erroneous comment regarding Boothby’s case in front of the jury. Is an erroneous judicial comment made in front of a jury that is not part of the jury instruction or legal ruling analyzed under the generic judicial misconduct standard?
A district judge made an erroneous comment regarding Boothby’s case in front of the jury. Is an erroneous judicial comment made in front of a jury that is not part of the jury instruction or legal ruling analyzed under the generic judicial misconduct standard?
Protection from Stalking Orders Cannot Restrict Speech
Oct. 14, 2019
Smith was convicted for violating her protection from stalking (“PFS”) order that prohibited her from making disparaging statements in public about Perez. Does this provision in the PFS order violate Smith’s First Amendment rights?
Smith was convicted for violating her protection from stalking (“PFS”) order that prohibited her from making disparaging statements in public about Perez. Does this provision in the PFS order violate Smith’s First Amendment rights?
Lifetime Registration of Juvenile Sex Offenders Found Constitutional
Oct. 14, 2019
The Kansas Offender Registration Act (KORA) requires lifetime registration as a sex offender for juveniles convicted of severity level 1 felonies. N.R. was convicted of rape when he was fourteen, and was later convicted for failing to register. Is KORA’s lifetime registration provision constitutional as applied to a fourteen-year-old juvenile defendant?
The Kansas Offender Registration Act (KORA) requires lifetime registration as a sex offender for juveniles convicted of severity level 1 felonies. N.R. was convicted of rape when he was fourteen, and was later convicted for failing to register. Is KORA’s lifetime registration provision constitutional as applied to a fourteen-year-old juvenile defendant?
Sept. 2019
An Untimely Appeal Under 28 U.S.C. § 2255
Sept. 26, 2019
Defendants may appeal a sentence under 28 U.S.C. § 2255 but, with limited exceptions, must do so within one year. The defendant was sentenced on March 20, 2017 and appealed his sentence in January 2019. The defendant argued that because the statute was recently found unconstitutional, he was entitled to a newly recognized right making his appeal timely. Was the defendant’s motion timely?
Defendants may appeal a sentence under 28 U.S.C. § 2255 but, with limited exceptions, must do so within one year. The defendant was sentenced on March 20, 2017 and appealed his sentence in January 2019. The defendant argued that because the statute was recently found unconstitutional, he was entitled to a newly recognized right making his appeal timely. Was the defendant’s motion timely?
Time in Jail Awaiting Sanction Should be Credited Toward That Sanction
Sept. 26, 2019
Defendant Christian Chardon was arrested for violating probation. Unable to make bond, he was in jail for 65 days awaiting his disposition hearing. At the hearing, the court sanctioned Chardon to serve 60 days in jail for violating probation. Should the court have credited the 65 days that Chardon spent in jail awaiting the hearing toward the 60-day sanction?
Defendant Christian Chardon was arrested for violating probation. Unable to make bond, he was in jail for 65 days awaiting his disposition hearing. At the hearing, the court sanctioned Chardon to serve 60 days in jail for violating probation. Should the court have credited the 65 days that Chardon spent in jail awaiting the hearing toward the 60-day sanction?
Acceptance of Responsibility Sufficient for Dispositional Departure
Sept. 22, 2019
A district court may consider a defendant’s acceptance of responsibility as a mitigating factor to warrant dispositional departure if the court articulates that reason. Does the defendant’s accepting responsibility for his actions warrant a dispositional departure if the court fails to articulate that reason?
A district court may consider a defendant’s acceptance of responsibility as a mitigating factor to warrant dispositional departure if the court articulates that reason. Does the defendant’s accepting responsibility for his actions warrant a dispositional departure if the court fails to articulate that reason?
Kansas’s Omnibus Criminal Justice Bill SB 18 Expands Definition of Person Felony for Criminal History Score
Sept. 21, 2019
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Forum Post
May 2019 - Aug. 2019
Introducing the Kansas Law Review Forum
Aug. 11, 2019
The Kansas Law Review is pleased to announce the launch of the University of Kansas Law Review Forum. The Forum will provide timely reactions to recent legal developments.
The Kansas Law Review is pleased to announce the launch of the University of Kansas Law Review Forum. The Forum will provide timely reactions to recent legal developments.
Evidence Found After Discovery of Outstanding Warrant During Welfare Stop is Inadmissible
May 17, 2019
Unconstitutionally-obtained evidence should be suppressed unless the connection between the evidence and the constitutional violation is too attenuated. Law enforcement officers encountered Richard Manwarren during a welfare check, but asked for—and retained—his identification to run a warrant check, without having any suspicion of wrongdoing. The officers discovered drugs and drug paraphernalia on Manwarren. Are they admissible as evidence?
Unconstitutionally-obtained evidence should be suppressed unless the connection between the evidence and the constitutional violation is too attenuated. Law enforcement officers encountered Richard Manwarren during a welfare check, but asked for—and retained—his identification to run a warrant check, without having any suspicion of wrongdoing. The officers discovered drugs and drug paraphernalia on Manwarren. Are they admissible as evidence?
No Appeal for the Imposition of Adult Sentences on Juveniles Who Violate Terms of Conditional Release
May 17, 2019
Does a court have jurisdiction over a juvenile offender’s appeal from the revocation of a juvenile sentence and the imposition of an extended juvenile jurisdiction proceeding (“EJJP”) stayed adult sentence?
Does a court have jurisdiction over a juvenile offender’s appeal from the revocation of a juvenile sentence and the imposition of an extended juvenile jurisdiction proceeding (“EJJP”) stayed adult sentence?
Jan. 2019 - Mar. 2019
Eligibility for Postconviction DNA Testing Not Determined by Sentence Imposed
Mar. 11, 2019
Some offenders qualify for postconviction DNA testing if they are similarly situated to those convicted of first-degree murder and rape. LaPointe was convicted of aggravated robbery but—because of his criminal history—received a sentence similar in length to a rape conviction. Does the length of LaPointe’s sentence make him similarly situated to offenders convicted of rape?
Some offenders qualify for postconviction DNA testing if they are similarly situated to those convicted of first-degree murder and rape. LaPointe was convicted of aggravated robbery but—because of his criminal history—received a sentence similar in length to a rape conviction. Does the length of LaPointe’s sentence make him similarly situated to offenders convicted of rape?
Correcting an Illegal Sentence Includes Determining Concurrent vs. Consecutive Sentencing
Mar. 11, 2019
On a motion to correct an illegal sentence, does the resentencing court have the authority to modify the duration and concurrent nature of the legal portions of the sentence, while addressing the illegal portion of a sentence?
On a motion to correct an illegal sentence, does the resentencing court have the authority to modify the duration and concurrent nature of the legal portions of the sentence, while addressing the illegal portion of a sentence?
Prosecutorial Error May Occur During Sentencing Proceedings
Jan. 8, 2019
Under the 14th Amendment, a criminal defendant has a due process right to a fair trial. Can a prosecutor’s error, made outside the jury trial context, violate this due process right?
Under the 14th Amendment, a criminal defendant has a due process right to a fair trial. Can a prosecutor’s error, made outside the jury trial context, violate this due process right?
Publicly-Parked Car Not Seized After Arrest
Jan. 8, 2019
Parker was arrested outside his locked car. His car sat in a public parking lot until a drug dog arrived to sniff the vehicle. Was his car unlawfully “seized” by the officers during this time?
Parker was arrested outside his locked car. His car sat in a public parking lot until a drug dog arrived to sniff the vehicle. Was his car unlawfully “seized” by the officers during this time?
Jan. 2019
Marijuana Odor Can Justify Probable Cause
Jan. 8, 2019
Can marijuana odor supply probable cause?
Can marijuana odor supply probable cause?
Officers Cannot Search Containers of Already-Identified Drivers Involved in Accident Without a Warrant
Jan. 8, 2019
The “community caretaking” exception to the warrant requirement allows officers to conduct limited warrantless searches. Evans, who had already identified herself to officers, was taken from the scene of a car accident by ambulance. An officer opened her wallet to find her driver’s license; he found drugs. Did the search of Evans’ wallet violate the Fourth Amendment?
The “community caretaking” exception to the warrant requirement allows officers to conduct limited warrantless searches. Evans, who had already identified herself to officers, was taken from the scene of a car accident by ambulance. An officer opened her wallet to find her driver’s license; he found drugs. Did the search of Evans’ wallet violate the Fourth Amendment?
Simultaneous Consideration No Longer Required for Kansas Homicide Instructions
Jan. 8, 2019
The Kansas Supreme Court has previously held that courts must instruct juries to consider both greater and lesser offenses simultaneously in homicide cases. After years of criticism, should courts still require simultaneous instructions?
The Kansas Supreme Court has previously held that courts must instruct juries to consider both greater and lesser offenses simultaneously in homicide cases. After years of criticism, should courts still require simultaneous instructions?
Arrests on Outstanding Warrants Don't Justify Searches of Bags Outside the Owner's Control
Jan. 8, 2019
Law enforcement may conduct a warrantless, though limited, “search incident to arrest” under the Fourth Amendment. Officers arrested Ritchey pursuant to an outstanding warrant. Could they search a purse in the Ritchey’s car—outside her immediate control—without a search warrant?
Law enforcement may conduct a warrantless, though limited, “search incident to arrest” under the Fourth Amendment. Officers arrested Ritchey pursuant to an outstanding warrant. Could they search a purse in the Ritchey’s car—outside her immediate control—without a search warrant?