Printable Format22-2902. Preliminary examination. (a) The state and every person charged with a felony shall have a right to a preliminary examination before a magistrate, unless such charge has been issued as a result of an indictment by a grand jury.
(b) The preliminary examination shall be held before a magistrate of a county in which venue for the prosecution lies within 14 days after the arrest or personal appearance of the defendant. Continuances may be granted only for good cause shown.
(c) The defendant shall not enter a plea at the preliminary examination. The defendant shall be personally present and except for witnesses who are children less than 13 years of age, the witnesses shall be examined in the defendant's presence. The defendant's voluntary absence after the preliminary examination has been begun in the defendant's presence shall not prevent the continuation of the examination. Except for witnesses who are children less than 13 years of age, the defendant shall have the right to cross-examine witnesses against the defendant and introduce evidence in the defendant's own behalf. If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant. When the victim of the felony is a child less than 13 years of age, the finding of probable cause as provided in this subsection may be based upon hearsay evidence in whole or in part presented at the preliminary examination by means of statements made by a child less than 13 years of age on a videotape recording or by other means.
(d) The defendant and the state shall be permitted to present the testimony of a witness through a two-way electronic audio-video communication device.
(e) If the defendant and the state waive preliminary examination, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case.
(f) Any judge of the district court may conduct a preliminary examination, and a district judge may preside at the trial of any defendant even though such judge presided at the preliminary examination of such defendant.
(g) The complaint or information, as filed by the prosecuting attorney pursuant to K.S.A. 22-2905, and amendments thereto, shall serve as the formal charging document at trial. When a defendant and prosecuting attorney reach agreement on a plea of guilty or nolo contendere, the defendant and the prosecuting attorney shall notify the district court of such agreement and arrange for a time to plead, pursuant to K.S.A. 22-3210, and amendments thereto.
(h) The judge of the district court, when conducting the preliminary examination, shall have the discretion to conduct arraignment, subject to assignment pursuant to K.S.A. 20-329, and amendments thereto, at the conclusion of the preliminary examination.
History: L. 1970, ch. 129, § 22-2902; L. 1976, ch. 163, § 10; amended by Supreme Court (order dated December 5, 1980); eff. January 21, 1981; L. 1986, ch. 115, § 59; L. 1993, ch. 133, § 1; L. 1999, ch. 159, § 5; L. 2006, ch. 70, § 1; L. 2010, ch. 135, § 17; L. 2022, ch. 76, § 5; July 1.
Source or Prior Law:
62-610, 62-611, 62-614, 62-615, 62-618, 62-621, 62-805.
Law Review and Bar Journal References:
"Practicing Law in a Unified Kansas Court System," Linda Diane Henry Elrod, 16 W.L.J. 260, 264 (1977).
Constitutionality of the use of lay judges in Kansas, 25 K.L.R. 275, 276 (1977).
"The Admissibility of Child Victim Hearsay in Kansas: A Defense Perspective," Christopher B. McNeil, 23 W.L.J. 265, 268, 278 (1984).
"A proposal for the Use of Otherwise Inadmissible Hearsay in Kansas Preliminary Examinations," Emil A. Tonkovich, 32 K.L.R. 837 (1984).
"Juvenile Law: Prosecuting Juveniles As Adults," The Hon. Tom Malone, 60 J.K.B.A. No. 5, 39, 41 (1991).
Survey of Recent Cases, 43 K.L.R. 980 (1995).
"Criminal Law: Computer Hackers Must Do More Than Dial Phone Numbers to be Charged with Computer Crime in Kansas [State v. Allen, 917 P.2d 848 (Kan. 1996)]," Angela N. Loehr, 36 W.L.J. 530 (1997).
Survey of Recent Cases, 45 K.L.R. 1363 (1997).
"Criminal Procedure Survey of Recent Cases, Kansas Issue," 52 K.L.R. 771 (2004).
"Criminal Procedure Survey of Recent Cases," 53 K.L.R. 983 (2005).
Criminal Procedure Survey, 55 K.L.R. 797 (2007).
Criminal Procedure Survey, 56 K.L.R. 790 to 792 (2008).
Attorney General's Opinions:
Procedure after arrest; venue in multicounty judicial district. 83-178.
CASE ANNOTATIONS
1. Error alleged in trial court action denying continuance; held no error; proper procedure followed in allowing defendant to waive preliminary hearing. State v. McCollum, 209 Kan. 498, 500, 496 P.2d 1381.
2. Sufficiency of preliminary examination may be challenged only by motion under K.S.A. 22-3208. State v. Smith, 215 Kan. 34, 37, 38, 523 P.2d 691.
3. Defendant waived irregularities in preliminary hearing by pleading not guilty and going to trial on the information. State v. Ralls, 216 Kan. 692, 696, 533 P.2d 1294.
4. Provisions directory; do not require dismissal of subsequent charges if preliminary examination not provided within ten days. State v. Fink, 217 Kan. 671, 673, 538 P.2d 1390.
5. Applied; nature and purpose of preliminary examination determined. State v. Boone, 218 Kan. 482, 484, 543 P.2d 945.
6. Subsection (3) cited in holding that state need not present its whole case at preliminary hearing, only evidence which shows commission of a felony and probable cause that accused committed the crime. State v. Holloway, 219 Kan. 245, 248, 547 P.2d 741.
7. Referred to in determining preliminary prosecution procedures did not deny due process. State v. Henry, 219 Kan. 310, 312, 548 P.2d 808.
8. Findings of magistrate although erroneous not prejudicial error; conviction of felony theft affirmed. State v. Dunnan, 223 Kan. 428, 429, 573 P.2d 1068.
9. Referred to; defendants charged with false writing and conspiracy did not receive speedy trial. State v. Cuezze, Houston & Faltico, 225 Kan. 274, 277, 589 P.2d 626.
10. Time provisions of section directory; right to speedy trial gauged under flexible standards constitutional test. State v. Taylor, 3 Kan. App. 2d 316, 318, 319, 321, 594 P.2d 262.
11. Subsection (3) cited; motion to dismiss made after preliminary examination but before arraignment; double jeopardy defense not waived. In re Berkowitz, 3 Kan. App. 2d 726, 731, 602 P.2d 99.
12. Purposes of preliminary hearings discussed. State v. Ramsey, 228 Kan. 127, 131, 132, 612 P.2d 603.
13. Time limitations hereunder are directory; inconsequential delay beyond time specified for preliminary hearing will not justify dismissal. State v. Weigel, 228 Kan. 194, 200, 201, 612 P.2d 636.
14. Provisions for hearing pursuant to K.S.A. 38-817(a) are directory, not mandatory. In re Flournoy, 5 Kan. App. 2d 220, 223, 613 P.2d 970.
15. Considered in construing K.S.A. 21-4603 as permitting district court to retain jurisdiction and act on timely motion for probation or sentence reduction after 120-day period. State ex rel. Owens v. Hodge, 230 Kan. 804, 812, 641 P.2d 399 (1982).
16. No denial of full and fair preliminary hearing hereunder. State v. Ashworth, 231 Kan. 623, 624, 647 P.2d 1281 (1982).
17. Appeal may be perfected even though a complaint dismissed at pretrial may be refiled. State v. Zimmerman & Schmidt, 233 Kan. 151, 154, 660 P.2d 960 (1983).
18. Purpose and conduct of preliminary hearing; conflict of testimony; test to be applied; duty of magistrate. State v. Jones, 233 Kan. 170, 172, 660 P.2d 965 (1983).
19. Hearsay evidence, though technically inadmissible, may form basis for probable cause in preliminary hearing if substantial basis for credibility. State v. Cremer, 8 Kan. App. 2d 699, 702, 666 P.2d 1200 (1983).
20. Defendant afforded opportunity to challenge existence of probable cause and cross-examine witnesses against him. State v. Sherry, 233 Kan. 920, 928, 929, 667 P.2d 367 (1983).
21. Rules in K.S.A. 60-401 et seq. apply at preliminary examinations except where relaxed by other rules or statutes. State v. Cremer, 234 Kan. 594, 598, 600, 676 P.2d 59 (1984).
22. Prosecution has discretion as juvenile waiver hearing (K.S.A. 38-1636) to request findings required in preliminary hearing. In re Davis, 234 Kan. 766, 768, 771, 674 P.2d 1045 (1984).
23. Judge may bind over on felony or discharge; binding over on misdemeanor error; proceedings relative thereto void. State v. Leslie, 237 Kan. 318, 319, 699 P.2d 510 (1985).
24. Where evidence insufficient to show felony committed and defendant committed it, magistrate must discharge defendant. State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985).
25. Trial court did not err in overruling motion to dismiss charges because preliminary hearing was not held in 10 days when defendant agrees to postponement. State v. Ulriksen, 210 Kan. 795, 799, 800, 504 P.2d 232 (1972).
26. Where probable cause shown at preliminary hearing, judge required to bind defendant over for trial. State v. Puckett, 240 Kan. 393, 396, 729 P.2d 458 (1986).
27. Cited; right of defendant rather than state to preliminary hearing examined. State v. Trudell, 243 Kan. 29, 39, 755 P.2d 511 (1988).
28. Accused may be bound over for trial on felony not charged in information. State v. Pioletti, 246 Kan. 49, 61, 785 P.2d 963 (1990).
29. Evidence arising from "reverse sting" drug operation sufficient to establish probable cause for violations of K.S.A. 21-3205(1) and 65-4127b(e) examined. State v. Starks, 249 Kan. 516, 820 P.2d 1243 (1991).
30. Factors to consider when determining whether constitutional right rather than statutory right to speedy trial violated examined. State v. Fitch, 249 Kan. 562, 564, 819 P.2d 1225 (1991).
31. Whether venue statute (K.S.A. 22-2609) applies to all acts of theft in theft statute (K.S.A. 21-3701); probable cause to bind defendant reviewed. State v. Martinez, 255 Kan. 464, 466, 470, 874 P.2d 617 (1994).
32. Whether judge erred by using inappropriate standard in reviewing probable cause to hold defendant examined. State v. Bockert, 257 Kan. 488, 491, 893 P.2d 832 (1995).
33. Noted in dissent discussion of what constitutes harmless error in challenging sufficiency of preliminary hearing. State v. Butler, 257 Kan. 1043, 1070, 897 P.2d 1007 (1995).
34. Dismissal of theft by deception after preliminary hearing based on state's failure to meet burden of proof upheld. State v. Bell, 259 Kan. 131, 132, 910 P.2d 205 (1996).
35. Trial court erred in dismissing complaint against participant in gun fight in which victim was shot by other participant. State v. Garza, 259 Kan. 826, 827, 916 P.2d 9 (1996).
36. A grand jury indictment can supercede a preliminary hearing if the grand jury finds probable cause before preliminary hearing. State v. Knighten, 260 Kan. 47, 55, 917 P.2d 1324 (1996).
37. Probable cause determination by grand jury indictment may be before or after defendant is charged with crime. State v. Green, 260 Kan. 471, 472, 920 P.2d 414 (1996).
38. Trial court's dismissal of defendant's aggravated battery against spouse at preliminary examination reversed. State v. Whittington, 260 Kan. 873, 876, 926 P.2d 237 (1996).
39. Grand jury that handed down indictment was properly convened. State v. Clemons, 261 Kan. 66, 68, 929 P.2d 749 (1996).
40. Evidence of driving under the influence of alcohol insufficient to bind defendant over on reckless aggravated battery. State v. Huser, 265 Kan. 228, 230, 959 P.2d 908 (1998).
41. Trial court erred in not binding defendant over for trial on aggravated assault charge. State v. Powell, 266 Kan. 282, 283, 971 P.2d 340 (1998).
42. At preliminary hearing, state need only present evidence of probable cause; court must accept testimony most favorable to the prosecution; but cf. dissent. State v. Wilson, 267 Kan. 530, 986 P.2d 365 (1999).
43. Upon preliminary examination, when state meets its burden of proof on charged offense, court may not dismiss the charged offense and bind the defendant over to stand trial on a lesser degree of the charged crime. State v. Bell, 268 Kan. 764, 1 P.3d 325 (2000).
44. On preliminary examination if court finds probable cause defendant committed crime, court shall bind defendant over for trial. State v. Ismaili, 269 Kan. 389, 7 P.3d 226 (2000).
45. Trial court's refusal to bind over defendant for trial upon charge of aggravated battery affirmed. Welch v. State, 270 Kan. 237, 13 P.3d 914 (2000).
46. At preliminary hearing, court is required to accept version of facts which is most favorable to state and should not discharge defendant based on doubts of witnesses' creditability. State v. Corbett 31 Kan. App. 2d 68, 59 P.3d 1054 (2003).
47. No constitutional right to confront witnesses at preliminary hearing. Bradley v. State, 32 Kan. App. 2d 178, 81 P.3d 444 (2003).
48. Court affirms conviction although 244 days between arrest and preliminary hearing; factors to be considered discussed. State v. Rivera, 277 Kan. 109, 83 P.3d 169 (2004).
49. Defendant shall be bound over for trial if evidence shows felony has been committed and there is probable cause to believe defendant committed the crime. State v. Romo-Uriarie, 33 Kan. App. 2d 22, 97 P.3d 1051 (2004).
50. Witnesses' testimony at preliminary hearing prejudicial, state presented insufficient evidence for probable cause to bind over for trial. State v. Horton, 283 Kan. 44, 56, 60, 151 P.3d 9 (2007).
51. Presentation of certified driving record listing defendant's prior DUI's sufficient to establish probable cause defendant committed felony DUI. State v. Shaw, 37 Kan. App. 2d 485, 491, 154 P.3d 524 (2007).
52. When diversion agreement successfully completed, charge does not become a conviction on that person's record. State v. Yrigolla, 38 Kan. App. 2d 1029, 1034, 175 P.3d 276 (2008).
53. A district magistrate judge has jurisdiction to conduct felony arraignments and accept pleas. State v. Valladarez, 288 Kan. 671, 206 P.3d 879 (2009).
54. Confrontation clause of the 6 th Amendment does not apply to admission of KBI laboratory reports at preliminary examinations. State v. Leshay, 289 Kan. 546, 213 P.3d 1071 (2009).
55. Defendant convicted under K.S.A. 21-3505(a)(1) and ordered to register as a sex offender; affirmed. State v. Coman, 42 Kan. App. 2d 592, 214 P.3d 1198 (2009).
56. Defendant's right to represent himself at his preliminary hearing violated; structural error. State v. Jones, 290 Kan. 373, 228 P.3d 394 (2010).
57. Pretrial evidentiary hearing on defendant's motion to dismiss did not constitute a preliminary examination. State v. Allen, 49 Kan. App. 2d 162, 305 P.3d 702 (2013).
58. In every felony case, except for a grand jury indictment, a defendant is entitled to a preliminary hearing, and a district court must find probable cause to believe that a felony has been committed before a defendant may be bound over for trial. State v. Lloyd, 52 Kan. App. 2d 780, 783, 375 P.3d 1013 (2016).