Session of 1998
By Committee on Judiciary
            9             AN ACT concerning crimes and criminal procedure; relating to prelim-
10             inary examination; victims of domestic violence; amending K.S.A. 22-
11             2902 and repealing the existing section.
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. K.S.A. 22-2902 is hereby amended to read as follows:
15       22-2902. (1) Every person arrested on a warrant charging a felony or
16       served with a summons charging a felony shall have a right to a prelimi-
17       nary examination before a magistrate, unless such warrant has been issued
18       as a result of an indictment by a grand jury.
19           (2) The preliminary examination shall be held before a magistrate of
20       a county in which venue for the prosecution lies within 10 days after the
21       arrest or personal appearance of the defendant. Continuances may be
22       granted only for good cause shown.
23           (3) The defendant shall not enter a plea at the preliminary exami-
24       nation. The defendant shall be personally present and except for witnesses
25       who are children less than 13 years of age or who are a victim of domestic
26       violence involving the defendant, the witnesses shall be examined in the
27       defendant's presence. The defendant's voluntary absence after the pre-
28       liminary examination has been begun in the defendant's presence shall
29       not prevent the continuation of the examination. Except for witnesses
30       who are children less than 13 years of age or who are a victim of domestic
31       violence involving the defendant, the defendant shall have the right to
32       cross-examine witnesses against the defendant and introduce evidence in
33       the defendant's own behalf. If from the evidence it appears that a felony
34       has been committed and there is probable cause to believe that a felony
35       has been committed by the defendant, the magistrate shall order the
36       defendant bound over to the district judge having jurisdiction to try the
37       case; otherwise, the magistrate shall discharge the defendant. When the
38       victim of the felony is a child less than 13 years of age or a victim of
39       domestic violence, the finding of probable cause as provided in this sub-
40       section may be based upon hearsay evidence in whole or in part presented
41       at the preliminary examination by means of statements made by a child
42       less than 13 years of age or a victim of domestic violence on a videotape
43       recording or by other means. For purposes of this section, a victim of

SB 597


  1       domestic violence means a person who is a spouse, former spouse, parent,
  2       stepparent, child or stepchild of the defendant; a person who presently
  3       resides or who has resided with the defendant in the past; a person who
  4       has or has had a child in common with the defendant regardless of
  5       whether the person was ever married or lived with the defendant at any
  6       time; or a person who is pregnant and the defendant is the alleged father
  7       regardless of whether the person was ever married or lived with the de-
  8       fendant at any time; and the defendant intentionally or recklessly caused
  9       bodily injury or intentionally attempted to cause bodily injury to such
10       person or intentionally placed, by physical threat, such person in fear of
11       imminent bodily injury.
12           (4) If the defendant waives preliminary examination, the magistrate
13       shall order the defendant bound over to the district judge having juris-
14       diction to try the case.
15           (5) Any judge of the district court may conduct a preliminary exam-
16       ination, and a district judge may preside at the trial of any defendant even
17       though such judge presided at the preliminary examination of such de-
18       fendant.
19           (6) The complaint or information, as filed by the prosecuting attorney
20       pursuant to K.S.A. 22-2905 and amendments thereto, shall serve as the
21       formal charging document at trial. When a defendant and prosecuting
22       attorney reach agreement on a plea of guilty or nolo contendere, they shall
23       notify the district court of their agreement and arrange for a time to plead,
24       pursuant to K.S.A. 22-3210 and amendments thereto.
25           (7) The district judge, when conducting the preliminary examination,
26       shall have the discretion to conduct arraignment at the conclusion of the
27       preliminary examination.
28           Sec. 2. K.S.A. 22-2902 is hereby repealed.
29           Sec. 3. This act shall take effect and be in force from and after its
30       publication in the statute book.