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Minutes for HB2538 - Committee on Judiciary
Short Title
Modifying the time requirement for holding a preliminary hearing and allowing testimony to be presented through two-way electronic audio-visual communication devices.
Minutes Content for Thu, Feb 3, 2022
Chairperson Patton opened the hearing on HB2538. Natalie Scott provided an overview. Ms. Scott stood for questions. (Attachment 1)
Proponent
Brett Watson stated HB2538 amends K.S.A. 22-2902(3), which is the statutory provision for preliminary hearings. The bill would allow for courts to consider hearsay in whole or in part in making a probable cause determination in felony cases. Additionally, it would permit the taking of testimony at preliminary hearings through electronic media platforms such as Zoom or Skype. The preliminary hearing procedure, in its present form, goes well beyond what is constitutionally required for a probable cause determination. In fact, the U.S. Supreme Court stated the Constitution does not even require a preliminary hearing to satisfy the 4th Amendment probable cause requirement. The efficiencies created by HB2538 cannot be understated. When considered throughout the 105 counties across the State of Kansas, consider the number of witnesses that are needlessly inconvenienced by a process that requires witnesses missing work, law enforcement officers often lined up outside of the courtroom waiting to testify rather than patrolling the streets, agencies paying overtime for officers to attend hearings during their off-duty hours, medical personnel spending time in court rather than attending to their patients, court personnel including judges and court reporters spending hours of court time, prosecutors and defense attorneys preparing and attending these protracted hearings, sheriff offices having to personally serve subpoenas for witness attendance. These costs, both in time and money for hearings that far exceed what is constitutionally mandated are substantial. Finally, and probably the most important factor, HB2538 would save victims, especially those of violent crimes, from being required to attend hearings and face the perpetrator, sometimes within a few days or weeks, and then go through it all again at trial. Mr. Watson thanked the membership for the opportunity to appear and testify in support of HB2538. He respectfully requests that the committee report HB2538 favorably for passage. Mr. Watson stood for questions. (Attachment 2)
Written Proponent
Lindsie Ford, Kansas Coalition Against Sexual & Domestic Violence (Attachment 3)
Sherri Schuck, Pottawatomie County Attorney, Kansas County and District Attorneys Association (Attachment 4)
Opponent
Jennifer Roth testified as an opponent to HB2538. Ms. Roth explained what a preliminary hearing is, the current law on hearsay at preliminary hearings, what she felt like HB2538 would do, and problems she felt would present themselves if HB2538 becomes law. She went on to explain this change will dis-empower some victims, using hearsay at preliminary hearings will clog the system, the bill will not necessarily decrease the number of court hearings, and a defendant could be bound over exclusively on evidence that would be inadmissible at a trial. HB2538 could backfire on the prosecution in several ways. It could require additional measures to be considered such as requiring a baseline determination of reliability, requiring a recording of victims’ and witness’ statements, and making criminal depositions more accessible to defendants. She very carefully explains all of this in her attached testimony. (Attachment 5) Ms. Roth said for all the reasons explained, her organization respectfully requests that this committee reject HB2538 in its entirety. Alternatively, if the Committee allows hearsay at preliminary hearings, Ms. Roth ask this committee to create the safeguards and processes explained previously. Ms. Roth stood for questions.
Aileen Berquist stated the presentation of witness testimony through two-way electronic communication violates the Confrontation Clause and the principles that animate it. State Supreme Courts have considered measures similar to the one before the committee today, and held that such measures are unconstitutional, overturning convictions as a result. An additional concern is the use of the phrase “reasonable time” regarding when a preliminary hearing can be set after arrest. And finally, hearsay evidence is inadmissible at trial and should be given no more credence at a preliminary hearing. The burden should be on the prosecution at the preliminary hearing to prove that there are grounds for prosecuting the defendant. Relying on hearsay is patently unfair to the defendant. It will result in more people being bound over for trial. Ms. Berquist and her organization sincerely hope that this committee will not move forward with this bill. She included additional resources in her submitted testimony. Ms. Berquist stood for questions. (Attachment 6)
Chairperson Patton closed the hearing on HB2538.
