22-2902. Preliminary examination.
22-2902
22-2902. Preliminary examination.(1) The state and every person charged with a felony shall have aright to apreliminaryexamination before a magistrate, unless such charge hasbeen issued asa result of an indictment by a grand jury.
(2) The preliminary examination shall be held before a magistrate ofa county in which venue for the prosecution lies within 10 daysafter the arrest or personal appearance of the defendant. Continuancesmay be granted only for good cause shown.
(3) The defendant shall not enter a plea at the preliminaryexamination. The defendant shall be personally present and except forwitnesses who are children less than 13 years of age, the witnessesshall be examined in the defendant's presence. The defendant'svoluntary absence after the preliminary examination has been begun in thedefendant's presence shall not prevent the continuation of the examination.Except for witnesses who are children less than 13 years of age, the defendantshall have the right to cross-examine witnesses against the defendant andintroduce evidence in the defendant's own behalf. If from the evidence itappears that a felony has been committed and there is probable cause to believethat a felony has been committed by the defendant, the magistrate shall orderthe defendant bound over to the district judge having jurisdiction to try thecase; otherwise, the magistrate shall discharge the defendant. When the victimof the felony is a child less than 13 years of age, the finding of probablecause as provided in this subsection may be basedupon hearsay evidence in whole or in part presented at the preliminaryexamination by means of statements made by a child less than 13 years of age ona videotape recording or by other means.
(4) If the defendant and the state waive preliminaryexamination, the magistrateshall order the defendant bound over to the district judge having jurisdictionto try the case.
(5) Any judge of the district court may conduct a preliminaryexamination, and a district judge maypreside at the trial of any defendant even though such judge presided atthe preliminary examination of such defendant.
(6) The complaint or information, as filed by the prosecuting attorneypursuant to K.S.A. 22-2905 and amendments thereto,shall serve as the formal chargingdocument at trial. When a defendant and prosecuting attorney reach agreementon a plea of guilty or nolo contendere, the defendantand the prosecuting attorney shall notify the districtcourt of such agreement and arrange for a time to plead,pursuant toK.S.A. 22-3210 and amendments thereto.
(7) The judge of the district court, when conductingthepreliminary examination, shall have the discretion to conduct arraignment,subject to assignment pursuant to K.S.A. 20-329 and amendments thereto, atthe conclusion of the preliminary examination.
History: L. 1970, ch. 129, § 22-2902;L. 1976, ch. 163, § 10;am. by Supreme Court (order dated Dec. 5, 1980); eff. Jan. 21, 1981;L. 1986, ch. 115, § 59;L. 1993, ch. 133, § 1;L. 1999, ch. 159, § 5;L. 2006, ch. 70, § 1; July 1.