Printable Format22-3212. Discovery and inspection. (a) Upon request, the prosecuting attorney shall permit the defense to inspect and copy or photograph the following, if relevant: (1) Written or recorded statements or confessions made by the defendant, or copies thereof, which are or have been in the possession, custody or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (2) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (3) recorded testimony of the defendant before a grand jury or at an inquisition; and (4) memoranda of any oral confession made by the defendant and a list of the witnesses to such confession, the existence of which is known, or by the exercise of due diligence may become known to the prosecuting attorney.
(b) (1) Except as provided in subsection (l), upon request, the prosecuting attorney shall permit the defense to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution.
(2) The prosecuting attorney shall also provide a summary or written report of what any expert witness intends to testify to on direct examination, including the witness' qualifications and the witness' opinions, at a reasonable time prior to trial by agreement of the parties or by order of the court.
(3) Except as provided in subsections (a)(2) and (a)(4), and as otherwise provided by law, this section does not authorize the discovery or inspection of reports, memoranda or other internal government documents made by officers in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses, other than the defendant.
(4) Except as provided in subsection (g), this section does not require the prosecuting attorney to provide unredacted vehicle identification numbers or personal identifiers of persons mentioned in such books, papers or documents.
(5) As used in this subsection, personal identifiers include, but are not limited to, birthdates, social security numbers, taxpayer identification numbers, drivers license numbers, account numbers of active financial accounts, home addresses and personal telephone numbers of any victims or material witnesses.
(6) If the prosecuting attorney does provide the defendant's counsel with unredacted vehicle identification numbers or personal identifiers, the defendant's counsel shall not further disclose the unredacted numbers or identifiers to the defendant or any other person, directly or indirectly, except as authorized by order of the court.
(7) If the prosecuting attorney provides books, papers or documents to the defendant's counsel with vehicle identification numbers or personal identifiers redacted by the prosecuting attorney, the prosecuting attorney shall provide notice to the defendant's counsel that such books, papers or documents had such numbers or identifiers redacted by the prosecuting attorney.
(8) Any redaction of vehicle identification numbers or personal identifiers by the prosecuting attorney shall be by alteration or truncation of such numbers or identifiers and shall not be by removal.
(c) If the defense seeks discovery and inspection under subsection (a)(2) or subsection (b), the defense shall:
(1) Permit the attorney for the prosecution to inspect and copy or photograph scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof, which the defense intends to produce at any hearing, are material to the case and will not place an unreasonable burden on the defense; and
(2) provide for the attorney for the prosecution a summary or written report of what any expert witness intends to testify, including the witness' qualifications and the witness' opinions, at a reasonable time prior to trial by agreement of the parties or by order of the court.
(d) Except as to scientific or medical reports, subsection (c) does not authorize the discovery or inspection of reports, memoranda or other internal defense documents made by the defendant, or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prosecution or defense witnesses, or by prospective prosecution or defense witnesses, to the defendant, the defendant's agents or attorneys.
(e) All disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, such disclosures shall be made as provided in this section.
(f) The prosecuting attorney and the defense shall cooperate in discovery and reach agreement on the time, place and manner of making the discovery and inspection permitted, so as to avoid the necessity for court intervention.
(g) Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, enlarged or deferred or make such other order as is appropriate. Upon motion, the court may permit either party to make such showing, in whole or in part, in the form of a written statement to be inspected privately by the court. If the court enters an order granting relief following such a private showing, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
(h) Discovery under this section must be completed no later than 21 days after arraignment or at such reasonable later time as the court may permit.
(i) If, subsequent to compliance with an order issued pursuant to this section, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under this section, the party shall promptly notify the other party or the party's attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.
(j) For crimes committed on or after July 1, 1993, the prosecuting attorney shall provide all prior convictions of the defendant known to the prosecuting attorney that would affect the determination of the defendant's criminal history for purposes of sentencing under a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq., prior to their repeal, or the revised Kansas sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto.
(k) The prosecuting attorney and defense shall be permitted to inspect and copy any juvenile files and records of the defendant for the purpose of discovering and verifying the criminal history of the defendant.
(l) (1) In any criminal proceeding, any property or material that constitutes a visual depiction, as defined in subsection (a)(2) of K.S.A. 2022 Supp. 21-5510, and amendments thereto, shall remain in the care, custody and control of either the prosecution, law enforcement or the court.
(2) Notwithstanding subsection (b), if the state makes property or material described in this subsection reasonably available to the defense, the court shall deny any request by the defense to copy, photograph, duplicate or otherwise reproduce any such property or material submitted as evidence.
(3) For the purpose of this subsection, property or material described in this subsection shall be deemed to be reasonably available to the defense if the prosecution provides ample and liberal opportunity for inspection, viewing and examination of such property or material at a government facility, whether inside or outside the state of Kansas, by the defendant, the defendant's attorney and any individual the defendant may seek to qualify to furnish expert testimony at trial.
History: L. 1970, ch. 129, § 22-3212; amended by Supreme Court (order dated December 5, 1980); L. 1992, ch. 239, § 259; L. 1993, ch. 291, § 192; L. 1994, ch. 291, § 61; L. 1997, ch. 181, § 4; L. 2010, ch. 90, § 1; L. 2011, ch. 30, § 125; L. 2012, ch. 143, § 1; L. 2013, ch. 133, § 12; L. 2014, ch. 34, § 1; July 1.
Law Review and Bar Journal References:
Duty of prosecution to disclose evidence, Michael A. Barbara, 10 W.L.J. 54, 56, 57 (1970).
Pre-trial discovery and procedure, symposium on criminal procedure, Michael G. Norris, 18 K.L.R. 755, 760, (1970).
“Notes on the Code of Criminal Procedure,” Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 166 (1970).
Subsection (1) (b) cited in an article on traffic cases and license problems, William M. Ferguson, 39 J.B.A.K. 351, 354 (1970).
Survey of criminal law, Dan Walter and Dick Ring, 15 W.L.J. 341, 345 (1976).
Survey of criminal procedure, Cynthia Hartman, 15 W.L.J. 350, 353 (1976).
“The Insanity Defense in Kansas: Procedure and Practice,” Jack Peggs, 53 J.K.B.A. 187 (1984).
Survey of Recent Cases, 43 K.L.R. 983 (1995).
“Compliance Through Cooperation,” Robert W. Parnacott, 65 J.K.B.A. No. 5, 22 (1996).
Criminal Procedure Edition, 47 K.L.R. 937 (1999).
“Criminal Procedure Survey of Recent Cases, Kansas Issue,” 52 K.L.R. 771 (2004).
“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).
Attorney General’s Opinions:
Records open to public; official public records open to inspection. 79-17.
CASE ANNOTATIONS
1. Cited; new discovery procedure compared with previous provisions; trial court vested with wide discretion in discovery order matters. State v. Jones, 209 K. 526, 528, 498 P.2d 65.
2. Cited; appellants have available comprehensive discovery tools to aid in presentation of material evidence in defenses. State v. Kelley, 209 K. 699, 703, 498 P.2d 87.
3. Motion filed unreasonably late; no due process violation in denying independent analysis of evidence consumed in prosecution analysis. State v. Lightle, 210 K. 415, 416, 502 P.2d 834.
4. Cited; broad discovery placed within discretion of trial court. State v. Hill, 211 K. 287, 293, 507 P.2d 342.
5. Section distinguished from 22-3213; relates to pretrial discovery of particular type of statement. State v. Stafford, 213 K. 152, 157, 158, 515 P.2d 769. Opinion modified and rehearing denied: 213 K. 585, 518 P.2d 136.
6. Conviction of aggravated robbery and assault; wide judicial discretion where failure to comply with section; record examined; no error. State v. Hollaway, 214 K. 636, 637, 638, 522 P.2d 364.
7. Applied; failure of trial court to enforce alleged stipulation between counsel upheld. State v. Craven, 215 K. 546, 549, 527 P.2d 1003.
8. Applied; conviction under 21-3701; due process not violated; evidence withheld; oversight. State v. Kelly, 216 K. 31, 35, 531 P.2d 60.
9. Applied; refusal of court to compel county attorney to provide information concerning criminal record of complainant, error. State v. Humphrey, 217 K. 352, 357, 359, 537 P.2d 155.
10. Pretrial conference order comparable to order for discovery and inspection; no abuse of discretion. State v. Rogers, 217 K. 462, 466, 537 P.2d 222.
11. Failure of state to comply with discovery order; admission of evidence held harmless error. State v. Morin, 217 K. 646, 651, 652, 538 P.2d 684.
12. Discovery hereunder is an alternative discovery procedure and does not deprive defendant of right to subpoena duces tecum under 22-3214. State v. Adams, 218 K. 495, 501, 502, 545 P.2d 1134.
13. Subsection (7) applied; failure of state to comply with discovery order; judicial discretion not abused. State v. Johnson, 219 K. 847, 849, 549 P.2d 1370.
14. Prosecution could not be charged with wrongdoing for failure to permit inspection of recordings not in its possession or control. State v. Solem, 220 K. 471, 477, 552 P.2d 951.
15. No abuse of discretion in refusing inspection of composite drawing in prosecution’s possession. State v. Brown, 220 K. 684, 689, 690, 556 P.2d 443.
16. No abuse of discretion in denial of motion to dismiss for failure to supply bill of particulars prior to trial. State v. Coburn, 220 K. 743, 745, 556 P.2d 376.
17. Failure to seek remedy hereunder where evidence not revealed until trial; conviction of aggravated robbery affirmed. State v. Walker, 221 K. 381, 385, 559 P.2d 381.
18. Error cannot be predicated on refusal to exclude evidence unless record discloses matter submitted to court for determination and appropriate sanction. State v. Villa & Villa, 221 K. 653, 656, 657, 561 P.2d 428.
19. Refusal to grant new trial because of violation of discovery order not error; murder prosecution. State v. Rueckert, 221 K. 727, 736, 561 P.2d 850.
20. Testifying from notes which had not been delivered to defendant’s counsel not written statement; 22-3213 governed. State v. Bircher, 2 K.A.2d 15, 17, 573 P.2d 1128.
21. Failure to comply with section; admission of evidence not error. State v. Martin, 223 K. 78, 79, 573 P.2d 576.
22. Prosecution for conspiracy to sell cocaine, discovery and inspection rules stated; conviction affirmed. State v. Glazer, 223 K. 351, 358, 359, 574 P.2d 942.
23. Prosecutor’s failure to disclose defendant’s in-custody statement inadvertent; held no abuse of court’s discretion. State v. McGee, 224 K. 173, 177, 578 P.2d 269.
24. Section cited; trial court has broad discretion to require disclosure; motion should be made prior to trial. State v. McQueen & Hardyway, 224 K. 420, 431, 582 P.2d 251.
25. Failure to comply with order pursuant to subsection (7); admission of evidence did not constitute prejudicial error; conviction of crimes affirmed. State v. Sanders, 225 K. 147, 150, 587 P.2d 893.
26. No abuse of discretion in allowing admission of testimony of unendorsed witness. State v. Cook, 225 K. 259, 261, 263, 589 P.2d 616.
27. 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 K. 717, 724, 726, 727, 728, 595 P.2d 324.
28. Involuntary manslaughter conviction; pretrial discovery order applicable to all judges; no abuse of discretion by trial judge. State v. Satterfield, 3 K.A.2d 212, 215, 216, 592 P.2d 135.
29. Undisclosed detective’s report entered into evidence; all parties surprised; defendant given copy and permitted to recall witness for further cross-examination; no error in refusal to declare mistrial. State v. Jackson, 226 K. 302, 306, 597 P.2d 255.
30. No error by trial court in action brought under 65-4127a in refusing to strike expert witness testimony when chemical analysis report destroyed. State v. Bright, 229 K. 185, 187, 623 P.2d 917.
31. Return of property, by prosecution, to owner was not prejudicial to defendants; returned property was not exculpatory in nature. State v. Antwine & McHenry, 6 K.A.2d 900, 902, 904, 905, 636 P.2d 208 (1981).
32. Subsection (1)(b) entitles defendant to working notes but state must furnish only if in its possession. State v. Marks, 231 K. 645, 651, 652, 647 P.2d 1292 (1982).
33. Provisions hereunder, along with 22-2902a regarding forensic examiner, provide defendant with constitutional protection at preliminary hearing. State v. Sherry, 233 K. 920, 930, 931, 667 P.2d 367 (1983).
34. State not required to invite accused to participate in or supervise testing procedures even where amount available negates independent analysis. State v. Pearson, 234 K. 906, 915, 916, 678 P.2d 605 (1984).
35. Inadvertent failure to provide blood test results for DUI (8-1567) no justification for suppression of results. State v. Wanttaja, 236 K. 323, 324, 691 P.2d 8 (1984).
36. Calling mistrial required (22-3423) when state introduced corrected report that altered defense theory without informing defense. State v. Lewis, 238 K. 94, 95, 97, 708 P.2d 196 (1985).
37. Cited; sanctions for return of stolen property to crime victim, protection of rights of defendant and state discussed. State v. Winter, 238 K. 530, 535, 712 P.2d 1228 (1986).
38. State appeal from dismissal of marijuana charge (65-4105(d)(13), 65-4127b(b)(3)); no authority indicated compelling prosecution to dismiss or be in contempt. State v. Schilling, 238 K. 593, 594, 712 P.2d 1233 (1986).
39. Discussed; discovery order is not to be taken lightly by a member of the bar; order directing discovery is a continuing order. State v. Sullivan & Smith, 210 K. 842, 847, 504 P.2d 190 (1972).
40. Cited; associate counsel allowed by 19-717 bound by discovery requirements. State v. Dressel, 11 K.A.2d 552, 556, 558, 729 P.2d 1245 (1986).
41. Cited; question of whether due diligence exercised in discovering relevant information examined. State v. Barncord, 240 K. 35, 43, 726 P.2d 1322 (1986).
42. Cited; question of prosecutorial misconduct examined where supplemental report surfaced the night before testimony of state witness. State v. Ruebke, 240 K. 493, 504, 731 P.2d 842 (1987).
43. Complaining witness not subject to discovery attorney hired to assist prosecution (19-717) subject to limited discovery. State v. Dressel, 241 K. 426, 432, 436, 738 P.2d 830 (1987): Reversing 11 K.A.2d 552, 729 P.2d 1245 (1986).
44. Cited; insanity defense (22-3219) as speedy trial delay (22-3402) examined. State v. Maas, 242 K. 44, 46, 744 P.2d 1222 (1987).
45. Witnesses or documentary evidence may be used in rebuttal regardless of previous endorsement or discovery if outside scope of statute. State v. Trotter, 245 K. 657, 783 P.2d 1271 (1989).
46. Substantial safeguards for admission of hypnotically refreshed testimony examined. State v. Butterworth, 246 K. 541, 547, 792 P.2d 1049 (1990).
47. Evidence not disclosed before trial not suppressed where defendant has personal knowledge thereof. State v. Burnison, 247 K. 19, 24, 25, 795 P.2d 32 (1990).
48. Imposition of sanctions upheld where state failed to comply with order to produce certain information about confidential informant. State v. Clovis, 248 K. 313, 330, 807 P.2d 127 (1991).
49. No abuse of discretion by trial court in partially denying defendant’s discovery motion of DNA database. State v. Dykes, 252 K. 556, 558, 559, 847 P.2d 1214 (1993).
50. Trial court’s refusal to allow testimony of three unendorsed defense witnesses examined. State v. Coleman, 253 K. 335, 347, 856 P.2d 121 (1993).
51. Whether attorney’s contemptuous action was excusable because compliance with discovery order would violate defendant’s constitutional rights examined. State v. Williams, 20 K.A.2d 185, 187, 191, 884 P.2d 755 (1994).
52. Whether court’s order denying discovery of unsolved homicide investigation files reversible error examined. State v. Brinkley, 256 K. 808, 819, 888 P.2d 819 (1995).
53. Trial court had no jurisdiction to compel prosecuting witness to produce medical records; respondents should have issued subpoena. In re J.T.M., 22 K.A.2d 673, 679, 922 P.2d 1103 (1996).
54. Police officers report not discoverable until officer testifies at preliminary hearing. State v. Nuessen, 23 K.A.2d 456, 457, 459, 460, 933 P.2d 155 (1997).
55. Discovery sanction cases not controlling on prosecutorial misconduct/double jeopardy issue in mistrial. State v. Muck, 262 K. 459, 468, 939 P.2d 896 (1997).
56. No abuse of court’s discretion in ordering county attorney to make copies of two documents in possession of sheriff and to mail them to defense counsel. State v. Davis, 266 K. 638, 644, 972 P.2d 1099 (1999).
57. No violation of discovery order by state; oral statement of defendant was not a confession. State v. Maybin, 27 K.A.2d 189, 2 P.3d 179 (2000).
58. Defendant cannot compel complaining witness to submit to independent physical examination. State v. McIntosh, 30 K.A.2d 504, 43 P.3d 837 (2002).
59. Officer’s notes made in investigation of care are not discoverable. State v. DuMars, 33 K.A.2d 735, 108 P.3d 448 (2005).
60. Mentioned; inmate seeking certificate of appealability of federal district court’s denial of habeas petition; COA denied. Davis v. McKune, 241 Fed. Appx. 507, 509 (2007).
61. Mentioned; expert testimony admitted even though expert committed a discovery order violation. State v. Johnson, 286 K. 824, 832, 190 P.3d 207 (2008).
62. Cited; court imposes sanctions on former attorney general relating to records taken from attorney general’s office. Comprehensive Health of Planned Parenthood v. Kline, 287 K. 372, 420, 197 P.3d 370 (2008).
63. Duties under K.S.A. 22-3212 discussed. State v. Wilson, 41 K.A.2d 37, 200 P.3d 1283 (2009).
64. Refusal to admit medical records upheld. State v. Gaona, 41 K.A.2d 1064, 208 P.3d 308 (2009).
65. Prosecutor failed to notify defendant of the results of the additional testing and used the new information to undercut the defense; gross and flagrant misconduct found. State v. Grey, 46 K.A.2d 988, 268 P.3d 1218 (2012).
66. 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 K. 131, 298 P.3d 1102 (2013).
67. Exclusion of evidence is permitted sanction when party fails to comply with discovery. State v. Bridges, 297 K. 989, 306 P.3d 244 (2013).
68. Amendments to statute do not apply retroactively; upon request, the trial court should have conducted an in camera review of the requested discovery and determined whether the documents could lead to admissible evidence. State v. Willis, 51 K.A.2d 971, 981, 987, 358 P.3d 107 (2015).
69. Statute gives a district court in a criminal case a broad array of options for sanctions for discovery violations, and the sanction imposed is reviewed for abuse of discretion. State v. Miller, 308 K. 1119, 1175, 427 P.3d 907 (2018).
70. Statute does not permit post-conviction discovery in a criminal case. State v. Marks, 313 K. 717, 721, 490 P.3d 1160 (2021).