2021 Criminal Procedure Survey Archive
Oct. 2021 - Dec. 2021
Occupational Licensing Laws: Threading the Needle Between Consumer Protection and the Constitutional Right to Earn a Living
Dec. 31, 2021
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Forum Post
Challenging Prior Convictions in Kansas Sentencing: Who Has the Burden, and When?
Nov. 30, 2021
Under K.S.A. § 21-6814(c), when a defendant challenges the constitutionality of their prior convictions at or before their initial sentencing hearing, the State has the burden of proving any disputed portions of the defendant’s criminal history. If a defendant fails to challenge their prior convictions at the initial hearing, but does so on direct appeal of the sentencing, does the government still have the burden of proof?
Under K.S.A. § 21-6814(c), when a defendant challenges the constitutionality of their prior convictions at or before their initial sentencing hearing, the State has the burden of proving any disputed portions of the defendant’s criminal history. If a defendant fails to challenge their prior convictions at the initial hearing, but does so on direct appeal of the sentencing, does the government still have the burden of proof?
Bostock’s Aftershock: Intersectional Discrimination Claims Following Bostock v. Clayton County
Nov. 16, 2021
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Forum Post
Prison Gerrymandering: The Practice of Counting Inmates as Residents for Political Representation and the State Action Needed to End It
Oct. 26, 2021
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Aug. 2021 - Oct. 2021
The Criminal Restitution Statutes: Severing the Problematic Portions to Protect the Right to a Jury
Oct. 23, 2021
Under Kan. Stat. Ann. § 21-6604(b)(2) and Kan. Stat. Ann. § 22-3424(d)(1), criminal restitution shall be collected and enforced as a civil judgment pursuant to Kan. Stat. Ann. §§ 60-4301–4304.1 Do these criminal restitution statutes violate section 5 of the Kansas Constitution Bill of Rights by bypassing the traditional function of the jury to determine civil damages?
Under Kan. Stat. Ann. § 21-6604(b)(2) and Kan. Stat. Ann. § 22-3424(d)(1), criminal restitution shall be collected and enforced as a civil judgment pursuant to Kan. Stat. Ann. §§ 60-4301–4304.1 Do these criminal restitution statutes violate section 5 of the Kansas Constitution Bill of Rights by bypassing the traditional function of the jury to determine civil damages?
Cumulative Error Analysis: Why Courts Need to Consider the Benefit Received by Opposing Party when Prejudicial Information is Presented
Oct. 15, 2021
The Kansas Court of Appeals found five errors when Taylor appealed his criminal conviction. Four errors were not reversible either collectively or individually. Was the Kansas Court of Appeals correct in its cumulative error analysis that the four errors should not be reversed?
The Kansas Court of Appeals found five errors when Taylor appealed his criminal conviction. Four errors were not reversible either collectively or individually. Was the Kansas Court of Appeals correct in its cumulative error analysis that the four errors should not be reversed?
DNA Testing: Important Enough for Extended Jurisdiction and Too Important to Wait for Final Sentencing
Aug. 23, 2021
Does Kan. Stat. Ann. § 21-2512 extend a district court’s jurisdiction to consider a petition for DNA testing after the case has been appealed and before final sentencing?
Does Kan. Stat. Ann. § 21-2512 extend a district court’s jurisdiction to consider a petition for DNA testing after the case has been appealed and before final sentencing?
June 2021 - Aug. 2021
Statutory Differences Not Mere Semantics in Jury Instructions
Aug. 18, 2021
Jones was convicted of four counts of sexual exploitation of a minor under Kan. Stat. Ann. § 21-5510. Were the jury instructions clearly erroneous when they used different language than the charging document, resulting in an omission of an essential element of the charged crime?
Jones was convicted of four counts of sexual exploitation of a minor under Kan. Stat. Ann. § 21-5510. Were the jury instructions clearly erroneous when they used different language than the charging document, resulting in an omission of an essential element of the charged crime?
Absconding and Probation Revocation: Intent Requirements
Aug. 18, 2021
Did Dooley possess the requisite intent under K.S.A. 2013 Supp. 22-3716 to warrant revocation of probation rather than the imposition of intermediate sanctions after a pattern of probation violations?
Did Dooley possess the requisite intent under K.S.A. 2013 Supp. 22-3716 to warrant revocation of probation rather than the imposition of intermediate sanctions after a pattern of probation violations?
House Bill No. 2071 -- Expanding Protection for Minors against Stalking
June 12, 2021
Forum post
Forum post
State v. Albano: Revisiting the Right to Have a Jury Consider Sentence-Enhancing Prior Convictions
June 12, 2021
Does Section 5 of the Kansas Constitution Bill of Rights guarantee the right to have a jury determine the existence of sentence-enhancing prior convictions under the Kansas Sentencing Guidelines Act (KSGA)?
Does Section 5 of the Kansas Constitution Bill of Rights guarantee the right to have a jury determine the existence of sentence-enhancing prior convictions under the Kansas Sentencing Guidelines Act (KSGA)?
Mar. 2021 - May 2021
A Wrongful 226-Day Confinement and No Relief: The Impact of Distinguishing Juvenile Adjudications and Criminal Convictions
Mar. 22, 2021
Kan. Stat. Ann. § 60-5004 provides relief for wrongfully convicted and imprisoned persons. A magistrate judge wrongfully adjudicated and sentenced claimant M.M. to juvenile confinement. May M.M. recover for the wrongful juvenile adjudication under the remedial statute?
Kan. Stat. Ann. § 60-5004 provides relief for wrongfully convicted and imprisoned persons. A magistrate judge wrongfully adjudicated and sentenced claimant M.M. to juvenile confinement. May M.M. recover for the wrongful juvenile adjudication under the remedial statute?
With Court's Leave, Prosecutors May Dismiss Grand Jury Indictments
Mar. 11, 2021
Under Kansas common law, a prosecutor may dismiss or reduce any charge against a criminal defendant. Kan. Stat. Ann. § 22-3015(b), however, generally prohibits prosecutors from substantively amending indictments returned by grand juries. May a prosecutor dismiss an indictment?
Under Kansas common law, a prosecutor may dismiss or reduce any charge against a criminal defendant. Kan. Stat. Ann. § 22-3015(b), however, generally prohibits prosecutors from substantively amending indictments returned by grand juries. May a prosecutor dismiss an indictment?
Jan. 2021 - Mar. 2021
Compassionate Release in Prisons: A Moot Point After COVID-19 Infection
Mar. 5, 2021
A defendant requested to be released into immediate home confinement because of the dangers she faced if she contracted COVID-19. However, she contracted COVID-19 before her appeal was heard. May her case still be heard?
A defendant requested to be released into immediate home confinement because of the dangers she faced if she contracted COVID-19. However, she contracted COVID-19 before her appeal was heard. May her case still be heard?
Kansas Offender Registration Act: Substantial Compliance Is Not a Defense
Feb. 11, 2021
Under the Kansas Offender Registration Act (KORA), drug offenders are required to register new addresses within three days of moving. For seven years, Stoll registered her new addresses within three days of moving; however, she failed to register her new address within three days after her last move. Is substantial compliance a defense to failing to register under KORA?
Under the Kansas Offender Registration Act (KORA), drug offenders are required to register new addresses within three days of moving. For seven years, Stoll registered her new addresses within three days of moving; however, she failed to register her new address within three days after her last move. Is substantial compliance a defense to failing to register under KORA?
Jan. 2021
Court of Appeals Greenlights Legislature on Severe Punishments for Failing to Register
Jan. 26, 2021
Is the Kansas Offender Registration Act (KORA) unconstitutional because it criminalizes failure to register as a level six person felony without a mens rea element?
Is the Kansas Offender Registration Act (KORA) unconstitutional because it criminalizes failure to register as a level six person felony without a mens rea element?
Supplementing the Pattern Premeditation Jury Instruction: Necessary or Unnecessarily Confusing?
Jan. 15, 2021
Was the addition of a Bernhardt instruction to the premeditation Pattern Instruction for Kansas (PIK) confusing and therefore legally inappropriate?
Was the addition of a Bernhardt instruction to the premeditation Pattern Instruction for Kansas (PIK) confusing and therefore legally inappropriate?
There Is No Review of the Evidence Surrounding Prior Out-of-State Convictions When Determining Criminal History
Jan. 11, 2001
Kansas courts score a defendant’s prior criminal history by determining, in part, whether a defendant’s out-of-state offenses were person or nonperson felonies. This is done by determining whether the out-of-state statute refers to a similar Kansas offense. In making this determination, is it proper for a court to consider anything beyond the language of the out-of-state statute?
Kansas courts score a defendant’s prior criminal history by determining, in part, whether a defendant’s out-of-state offenses were person or nonperson felonies. This is done by determining whether the out-of-state statute refers to a similar Kansas offense. In making this determination, is it proper for a court to consider anything beyond the language of the out-of-state statute?
Jan. 2021
The Language Conduit Rule: Admitting Interpreters’ Hearsay Statements in Kansas
Jan. 6, 2021
Under Kan. Stat. Ann. § 60-460, statements made by a person other than a witness testifying in court are considered inadmissible hearsay unless they fall within an exception.[1] Are statements made by an interpreter admissible, despite the interpreter not being available for cross-examination?
Under Kan. Stat. Ann. § 60-460, statements made by a person other than a witness testifying in court are considered inadmissible hearsay unless they fall within an exception.[1] Are statements made by an interpreter admissible, despite the interpreter not being available for cross-examination?