Session of 1999
         
SENATE BILL No. 165
         
By Committee on Judiciary
          
1-28
          
  9             AN  ACT concerning crimes and punishment; relating to capital murder;
10             discovery.
11      
12       Be it enacted by the Legislature of the State of Kansas:
13             Section  1. (a) In any case in which a defendant charged with capital
14       murder intends, in the event of conviction, to present testimony of an
15       expert witness to support a claim in mitigation pursuant to K.S.A. 21-4626
16       and amendments thereto relating to the defendant's history, character or
17       mental condition, the defendant or the defendant's attorney shall give
18       notice in writing to the prosecuting attorney, at least 21 days before trial,
19       of such defendant or defendant's attorney's intention to present such
20       testimony. In the event that such notice is not given and the defendant
21       tenders testimony by an expert witness at the sentencing phase of the
22       trial, then the court, upon objection of the prosecuting attorney, shall
23       allow the prosecuting attorney a continuance and may, in the court's dis-
24       cretion, impose such sanctions as are appropriate under the
25       circumstances.
26             (b) If the attorney for the defendant gives notice or the court grants
27       a continuance pursuant to subsection (a) and the prosecuting attorney
28       thereafter seeks an evaluation concerning the existence or absence of
29       mitigating circumstances relating to the defendant's mental condition, the
30       court shall appoint one or more qualified experts to perform such an
31       evaluation. The court shall order the defendant to cooperate in such an
32       evaluation. After performing the evaluation, such experts shall report
33       their findings and opinions, and copies of their reports shall be filed under
34       seal with the court prior to commencement of the sentencing phase of
35       the trial.
36             (c) The results of any court-ordered examination of a defendant pur-
37       suant to this section, including the findings and opinions of the experts
38       shall be confidential and released to the prosecuting attorney only after
39       the jury reaches a verdict of guilty as to that defendant.
40             (d) If the court finds, after hearing evidence presented by the parties,
41       out of the presence of the jury, that the defendant has refused to coop-
42       erate with an evaluation requested by the prosecuting attorney, the court
43       may admit evidence of such refusal.

SB 165

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  1             (e) No evidence obtained as a result of an examination ordered pur-
  2       suant to subsection (b) shall be introduced or used by the prosecuting
  3       attorney in the determination of guilt phase of the trial, nor in the sen-
  4       tencing phase of a capital murder trial for the purpose of proving the
  5       aggravating circumstances specified in K.S.A. 21-4625 and amendments
  6       thereto. Such evidence shall be admissible in rebuttal only when relevant
  7       to issues in mitigation raised by the defense.
  8        Sec.  2. This act shall take effect and be in force from and after its
  9       publication in the statute book.