TOPEKA — The Shawnee County District Attorney’s office is lead advocate of a three-part bill aimed at lending a hand to prosecutors by allowing hearsay evidence, permitting remote audio-visual testimony and doing away with a two-week deadline for felony preliminary hearings.
The bundled bill endorsed by the Kansas County and District Attorney’s Association was condemned by the Kansas Association of Criminal Defense Lawyers and the ACLU of Kansas. Republican and Democratic members of the House Judiciary Committee expressed reservations about greater reliance on witnesses talking about words of another person when presenting evidence in court.
Brett Watson, chief deputy district attorney in Shawnee County, said House Bill 2538 would promote courthouse efficiency by allowing consideration of hearsay when making a probable cause determination in felony cases. The bill would do away with the requirement that preliminary hearings occur within 14 days of arrest or a first appearance in court — a deadline routinely waived.
In addition, he said, the legislation would ease logistical hurdles to in-person testimony by accepting testimony at preliminary hearings through electronic media platforms such as Zoom or Skype. He said the inconvenience of bringing out-of-state witnesses to hearings has been onerous, especially during the COVID-19 pandemic.
“These costs both in time and money for hearings that far exceed what is constitutionally mandated are substantial,” Watson said.
Watson said proposed changes to Kansas law would be constitutional because the confrontation clause of the U.S. Constitution granted criminal defendants the right to cross-examine witnesses at trial — not at pre-trial proceedings such as preliminary hearings.
Rep. John Wheeler, a Garden City Republican and former prosecutor, said the bill would open the door to hearsay in whole or in part. That could include a detective’s written statement of an interview with a witness, he said.
“That is not only hearsay, it’s double hearsay,” Wheeler said. “I want to know how far we’re going to extend the hearsay rule.”
The administration of justice shouldn’t be based on a vision of efficiency embraced by a prosecutor or a judge nor should the system be structured so district or county attorneys have leeway to move ahead with preliminary hearings in a “reasonable time” rather than by a firm deadline, said Rep. John Carmichael, a Wichita Democrat and an attorney.
Carmichael said the proposal regarding hearsay would make the pre-trial process more closely resemble operation of grand juries, in which defendants don’t have the right to cross-examine witnesses during secret proceedings.
“It takes cross-examination of eyewitnesses to do justice,” Carmichael said. “I don’t expect you to agree with that.”
“I don’t think prosecutors would wholesale have preliminary hearings where there are farces or kangaroo courts,” Watson said. “We don’t aimlessly chase our tails with pointless cases.”
Watson said the Shawnee County District Attorney’s Office avoided some preliminary hearings with frequent use of the grand-jury process.
Rep. Fred Patton, the Topeka Republican who chairs the House Judiciary Committee, invited Shawnee County District Attorney Mike Kagay to testify before the committee on the bill. Kagay declined.
Engine of truth
Jennifer Roth, legislative co-chair of the Kansas Association of Criminal Defense Lawyers, said she had long been concerned that closed grand juries involved law enforcement officers engaging in hearsay testimony by reading reports from their work or of other officers. If the proposed bill was passed, she said, it would be more likely transform preliminary hearings into forums for officers to simply read hearsay into evidence.
Roth said the result could be that defendants were bound over for trial exclusively on weight of evidence inadmissible at trial. In addition, she said, the preliminary hearings were a powerful force in the judicial system because nine out of 10 people bound over for trial reached some sort of plea agreement rather than go to trial.
“As a policy matter, does the Legislature want courts to be able to bind a defendant over on a felony charge — that carries all the punishment and consequences that felonies have — based solely on evidence that arguably would be inadmissible if there was a trial?” Roth said. “When liberty is at stake, ‘efficiency’ should not be our primary value.”
Aileen Berquist, representing the ACLU of Kansas, said the proposal in the bill for two-way communication of testimony would violate the Sixth Amendment of the U.S. Constitution regarding the right of the accused to confront witnesses. The value of cross-examination cannot be overstated, she said.
“It’s a hallmark of our legal system and has been called the greatest legal engine ever invented for the discovery of truth,” she said.
Lindsie Ford, public policy attorney with the Kansas Coalition Against Sexual and Domestic Violence, said the organization endorsed the bill because crime victims would have an opportunity to testify at preliminary hearings without being in the same room as the person who allegedly attacked them.
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