As Amended by Senate Committee
As Amended by House Committee
Session of 2023
HOUSE BILL No. 2293
By Committee on Judiciary
2-6
AN ACT concerning crimes, punishment and criminal procedure; relating
to jailhouse witness testimony; requiring prosecutors to disclose their
intent to introduce testimony from a jailhouse witness and to forward
related information to the Kansas bureau of investigation; providing
for confidentiality of such information; amending K.S.A. 45-229 and
repealing the existing section.
WHEREAS, The provisions of section 1 of this act shall be known as
the Pete Coones memorial act.
Now, therefore:
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) (1) In any criminal prosecution, the prosecuting
attorney shall disclose its intent to introduce testimony of a jailhouse
witness regarding statements made by a suspect or defendant while such
witness and suspect or defendant were both incarcerated within the time
provided by K.S.A. 22-3212, and amendments thereto. The prosecuting
attorney shall provide to the defense:
(A) The criminal history of the jailhouse witness, including any
pending or dismissed criminal charges;
(B) the jailhouse witness's cooperation agreement and any benefit that
has been requested by, provided to or will be provided in the future to the
jailhouse witness;
(C) the contents of any statement allegedly given by the suspect or
defendant to the jailhouse witness and the contents of any statement given
by the jailhouse witness to law enforcement regarding the statements
allegedly made by the suspect or defendant, including the time and place
such statements were given;
(D) any information regarding the jailhouse witness recanting
testimony or statements, including the time and place of the recantation,
the nature of the recantation and the names of the people present at the
recantation; and
(E) any information concerning other criminal cases in which the
testimony of the jailhouse witness was introduced or was intended to be
introduced by a prosecuting attorney regarding statements made by a
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suspect or defendant, including any cooperation agreement and any benefit
that the jailhouse witness received in such case.
(2) The court may permit the prosecuting attorney to comply with the
provisions of this section after the time period provided in paragraph (1) if
the court finds that the jailhouse witness was not known or the information
described in paragraph (1) could not be discovered or obtained by the
prosecuting attorney exercising due diligence within such time period.
(3) If the court finds that disclosing the information described in
paragraph (1) is likely to cause bodily harm to the jailhouse witness, the
court may:
(A) Order that such evidence be viewed only by the defense counsel
and not by the defendant or others; and
(B) issue a protective order.
(b) (1) In a criminal prosecution for any murder or rape, as defined in
K.S.A. 21-3502, prior to its repeal, or K.S.A. 2022 Supp. 21-5503, and
amendments thereto, in which the prosecuting attorney intends to
introduce the testimony of a jailhouse witness, upon motion of the
defendant, the court shall conduct a pre-trial hearing to determine whether
the jailhouse witness's testimony exhibits reliability and is admissible
based on the following factors:
(A) The extent to which the jailhouse witness's testimony is
confirmed by other evidence;
(B) the specificity of the testimony;
(C) the extent to which the testimony contains details that would be
known only by the perpetrator of the offense;
(D) the extent to which the details of the testimony could be obtained
from a source other than the suspect or defendant; and
(E) the circumstances under which the jailhouse witness provided the
information to the prosecuting attorney or a law enforcement officer,
including, but not limited to, whether the jailhouse witness was responding
to leading questions.
(2) If the prosecuting attorney fails to show by a preponderance of the
evidence that a jailhouse witness's testimony is reliable, the court shall
exclude the testimony at trial.
(c) (1) Each prosecuting attorney's office shall maintain a central
record containing information regarding:
(A) Any case in which testimony by a jailhouse witness is introduced
or is intended to be introduced by a prosecuting attorney regarding
statements made by a suspect or defendant and the substance of such
testimony; and
(B) any benefit that has been requested by, provided to or will be
provided in the future to a jailhouse witness in connection with testimony
provided by such witness.
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(2) Each prosecuting attorney's office shall forward the information
described in paragraph (1) to the Kansas bureau of investigation. The
bureau shall maintain a statewide database containing the information
forwarded pursuant to this section. Such database shall be accessible only
to prosecuting attorneys and shall otherwise remain confidential and not
subject to the open records act, K.S.A. 45-215 et seq., and amendments
thereto. The provision regarding confidentiality shall expire on July 1,
2028, unless the legislature reviews and acts to continue such provision
not be subject to expiration or review pursuant to K.S.A. 45-229, and
amendments thereto, prior to July 1, 2028.
(d)(c) If a jailhouse witness receives any benefit in connection with
offering or providing testimony against a defendant, the prosecuting
attorney shall notify any victim connected to the criminal prosecution.
(e) If the testimony of a jailhouse witness is admitted into evidence,
the jury shall be instructed that such testimony was provided by a jailhouse
witness and informed of any benefit that has been requested by, provided
to or will be provided in the future to the jailhouse witness in connection
with providing such testimony.
(f)(d) As used in this section:
(1) "Benefit" means any plea bargain, bail consideration, reduction or
modification of sentence, or any other leniency, immunity, financial
payment, reward or amelioration of current or future conditions of
sentence that is requested, provided or will be provided in the future in
connection with, or in exchange for, testimony of a jailhouse witness.
(2) "Jailhouse witness" means a person who provides testimony, or is
intended to provide testimony during a criminal prosecution regarding
statements made by a suspect or defendant while both the witness and the
suspect or defendant were incarcerated, and who has requested, has been
offered or may in the future receive a benefit in connection with such
testimony. "Jailhouse witness" does not mean a person who is a
confidential informant, an accomplice or a co-defendant.
(g)(e) This section shall be a part of and supplemental to the Kansas
code of criminal procedure.
Sec. 2. K.S.A. 45-229 is hereby amended to read as follows: 45-229.
(a) It is the intent of the legislature that exceptions to disclosure under
the open records act shall be created or maintained only if:
(1) The public record is of a sensitive or personal nature
concerning individuals;
(2) the public record is necessary for the effective and efficient
administration of a governmental program; or
(3) the public record affects confidential information.
The maintenance or creation of an exception to disclosure must be
compelled as measured by these criteria. Further, the legislature finds
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that the public has a right to have access to public records unless the
criteria in this section for restricting such access to a public record are
met and the criteria are considered during legislative review in
connection with the particular exception to disclosure to be significant
enough to override the strong public policy of open government. To
strengthen the policy of open government, the legislature shall consider
the criteria in this section before enacting an exception to disclosure.
(b) Subject to the provisions of subsections (g) and (h), any new
exception to disclosure or substantial amendment of an existing
exception shall expire on July 1 of the fifth year after enactment of the
new exception or substantial amendment, unless the legislature acts to
continue the exception. A law that enacts a new exception or
substantially amends an existing exception shall state that the exception
expires at the end of five years and that the exception shall be reviewed
by the legislature before the scheduled date.
(c) For purposes of this section, an exception is substantially
amended if the amendment expands the scope of the exception to
include more records or information. An exception is not substantially
amended if the amendment narrows the scope of the exception.
(d) This section is not intended to repeal an exception that has been
amended following legislative review before the scheduled repeal of the
exception if the exception is not substantially amended as a result of the
review.
(e) In the year before the expiration of an exception, the revisor of
statutes shall certify to the president of the senate and the speaker of the
house of representatives, by July 15, the language and statutory citation
of each exception that will expire in the following year that meets the
criteria of an exception as defined in this section. Any exception that is
not identified and certified to the president of the senate and the speaker
of the house of representatives is not subject to legislative review and
shall not expire. If the revisor of statutes fails to certify an exception that
the revisor subsequently determines should have been certified, the
revisor shall include the exception in the following year's certification
after that determination.
(f) "Exception" means any provision of law that creates an
exception to disclosure or limits disclosure under the open records act
pursuant to K.S.A. 45-221, and amendments thereto, or pursuant to any
other provision of law.
(g) A provision of law that creates or amends an exception to
disclosure under the open records law shall not be subject to review and
expiration under this act if such provision:
(1) Is required by federal law;
(2) applies solely to the legislature or to the state court system;
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(3) has been reviewed and continued in existence twice by the
legislature; or
(4) has been reviewed and continued in existence by the legislature
during the 2013 legislative session and thereafter; or
(5) is contained in the following statute: section 1(b).
(h) (1) The legislature shall review the exception before its
scheduled expiration and consider as part of the review process the
following:
(A) What specific records are affected by the exception;
(B) whom does the exception uniquely affect, as opposed to the
general public;
(C) what is the identifiable public purpose or goal of the exception;
(D) whether the information contained in the records may be
obtained readily by alternative means and how it may be obtained;
(2) an exception may be created or maintained only if it serves an
identifiable public purpose and may be no broader than is necessary to
meet the public purpose it serves. An identifiable public purpose is
served if the legislature finds that the purpose is sufficiently compelling
to override the strong public policy of open government and cannot be
accomplished without the exception and if the exception:
(A) Allows the effective and efficient administration of a
governmental program that would be significantly impaired without the
exception;
(B) protects information of a sensitive personal nature concerning
individuals, the release of such information would be defamatory to
such individuals or cause unwarranted damage to the good name or
reputation of such individuals or would jeopardize the safety of such
individuals. Only information that would identify the individuals may be
excepted under this paragraph; or
(C) protects information of a confidential nature concerning
entities, including, but not limited to, a formula, pattern, device,
combination of devices, or compilation of information that is used to
protect or further a business advantage over those who do not know or
use it, if the disclosure of such information would injure the affected
entity in the marketplace.
(3) Records made before the date of the expiration of an exception
shall be subject to disclosure as otherwise provided by law. In deciding
whether the records shall be made public, the legislature shall consider
whether the damage or loss to persons or entities uniquely affected by
the exception of the type specified in paragraph (2)(B) or (2)(C) would
occur if the records were made public.
(i) (1) Exceptions contained in the following statutes as continued
in existence in section 2 of chapter 126 of the 2005 Session Laws of
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Kansas and that have been reviewed and continued in existence twice by
the legislature as provided in subsection (g) are hereby continued in
existence: 1-401, 2-1202, 5-512, 9-1137, 9-1712, 9-2217, 10-630, 12-189,
12-1,108, 12-1694, 12-1698, 12-2819, 12-4516, 16-715, 16a-2-304, 17-
1312e, 17-2227, 17-5832, 17-7511, 17-76,139, 19-4321, 21-2511, 22-
3711, 22-4707, 22-4909, 22a-243, 22a-244, 23-605, 23-9,312, 25-4161,
25-4165, 31-405, 34-251, 38-2212, 39-709b, 39-719e, 39-934, 39-1434,
39-1704, 40-222, 40-2,156, 40-2c20, 40-2c21, 40-2d20, 40-2d21, 40-409,
40-956, 40-1128, 40-2807, 40-3012, 40-3304, 40-3308, 40-3403b, 40-
3421, 40-3613, 40-3805, 40-4205, 44-510j, 44-550b, 44-594, 44-635, 44-
714, 44-817, 44-1005, 44-1019, 45-221(a)(1) through (43), 46-256, 46-
259, 46-2201, 47-839, 47-844, 47-849, 47-1709, 48-1614, 49-406, 49-427,
55-1,102, 58-4114, 59-2135, 59-2802, 59-2979, 59-29b79, 60-3333, 60-
3336, 65-102b, 65-118, 65-119, 65-153f, 65-170g, 65-177, 65-1,106, 65-
1,113, 65-1,116, 65-1,157a, 65-1,163, 65-1,165, 65-1,168, 65-1,169, 65-
1,171, 65-1,172, 65-436, 65-445, 65-507, 65-525, 65-531, 65-657, 65-
1135, 65-1467, 65-1627, 65-1831, 65-2422d, 65-2438, 65-2836, 65-
2839a, 65-2898a, 65-3015, 65-3447, 65-34,108, 65-34,126, 65-4019, 65-
4922, 65-4925, 65-5602, 65-5603, 65-6002, 65-6003, 65-6004, 65-6010,
65-67a05, 65-6803, 65-6804, 66-101c, 66-117, 66-151, 66-1,190, 66-
1,203, 66-1220a, 66-2010, 72-2232, 72-3438, 72-6116, 72-6267, 72-9934,
73-1228, 74-2424, 74-2433f, 74-32,419, 74-4905, 74-4909, 74-50,131, 74-
5515, 74-7308, 74-7338, 74-8104, 74-8307, 74-8705, 74-8804, 74-9805,
75-104, 75-712, 75-7b15, 75-1267, 75-2943, 75-4332, 75-4362, 75-5133,
75-5266, 75-5665, 75-5666, 75-7310, 76-355, 76-359, 76-493, 76-12b11,
76-12c03, 76-3305, 79-1119, 79-1437f, 79-3234, 79-3395, 79-3420, 79-
3499, 79-34,113, 79-3614, 79-3657, 79-4301 and 79-5206.
(2) Exceptions contained in the following statutes as certified by the
revisor of statutes to the president of the senate and the speaker of the
house of representatives pursuant to subsection (e) and that have been
reviewed during the 2015 legislative session and continued in existence
by the legislature as provided in subsection (g) are hereby continued in
existence: 17-2036, 40-5301, 45-221(a)(45), (46) and (49), 48-16a10, 58-
4616, 60-3351, 72-3415, 74-50,217 and 75-53,105.
(j) (1) Exceptions contained in the following statutes as continued
in existence in section 1 of chapter 87 of the 2006 Session Laws of
Kansas and that have been reviewed and continued in existence twice by
the legislature as provided in subsection (g) are hereby continued in
existence: 1-501, 9-1303, 12-4516a, 39-970, 65-525, 65-5117, 65-6016,
65-6017 and 74-7508.
(2) Exceptions contained in the following statutes as certified by the
revisor of statutes to the president of the senate and the speaker of the
house of representatives pursuant to subsection (e) during 2015 and that
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have been reviewed during the 2016 legislative session are hereby
continued in existence: 12-5611, 22-4906, 22-4909, 38-2310, 38-2311,
38-2326, 40-955, 44-1132, 45-221(a)(10)(F) and (a)(50), 60-3333, 65-
4a05, 65-445(g), 65-6154, 71-218, 75-457, 75-712c, 75-723 and 75-7c06.
(k) Exceptions contained in the following statutes as certified by the
revisor of statutes to the president of the senate and the speaker of the
house of representatives pursuant to subsection (e) and that have been
reviewed during the 2014 legislative session and continued in existence
by the legislature as provided in subsection (g) are hereby continued in
existence: 1-205, 2-2204, 8-240, 8-247, 8-255c, 8-1324, 8-1325, 12-
17,150, 12-2001, 17-12a607, 38-1008, 38-2209, 40-5006, 40-5108, 41-
2905, 41-2906, 44-706, 44-1518, 45-221(a)(44), (45), (46), (47) and (48),
50-6a11, 65-1,243, 65-16,104, 65-3239, 74-50,184, 74-8134, 74-99b06,
77-503a and 82a-2210.
(l) Exceptions contained in the following statutes as certified by the
revisor of statutes to the president of the senate and the speaker of the
house of representatives pursuant to subsection (e) during 2016 and that
have been reviewed during the 2017 legislative session are hereby
continued in existence: 12-5711, 21-2511, 22-4909, 38-2313, 45-221(a)
(51) and (52), 65-516, 65-1505, 74-2012, 74-5607, 74-8745, 74-8752, 74-
8772, 75-7d01, 75-7d05, 75-5133, 75-7427 and 79-3234.
(m) Exceptions contained in the following statutes as certified by
the revisor of statutes to the president of the senate and the speaker of
the house of representatives pursuant to subsection (e) during 2012 and
that have been reviewed during the 2013 legislative session and
continued in existence by the legislature as provided in subsection (g)
are hereby continued in existence: 12-5811, 40-222, 40-223j, 40-5007a,
40-5009a, 40-5012a, 65-1685, 65-1695, 65-2838a, 66-1251, 66-1805, 72-
8268, 75-712 and 75-5366.
(n) Exceptions contained in the following statutes as certified by the
revisor of statutes to the president of the senate and the speaker of the
house of representatives pursuant to subsection (e) and that have been
reviewed during the 2018 legislative session are hereby continued in
existence: 9-513c(c)(2), 39-709, 45-221(a)(26), (53) and (54), 65-6832,
65-6834, 75-7c06 and 75-7c20.
(o) Exceptions contained in the following statutes as certified by the
revisor of statutes to the president of the senate and the speaker of the
house of representatives pursuant to subsection (e) that have been
reviewed during the 2019 legislative session are hereby continued in
existence: 21-2511(h)(2), 21-5905(a)(7), 22-2302(b) and (c), 22-2502(d)
and (e), 40-222(k)(7), 44-714(e), 45-221(a)(55), 46-1106(g) regarding
46-1106(i), 65-2836(i), 65-2839a(c), 65-2842(d), 65-28a05(n), article
6(d) of 65-6230, 72-6314(a) and 74-7047(b).
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(p) Exceptions contained in the following statutes as certified by the
revisor of statutes to the president of the senate and the speaker of the
house of representatives pursuant to subsection (e) that have been
reviewed during the 2020 legislative session are hereby continued in
existence: 38-2310(c), 40-409(j)(2), 40-6007(a), 45-221(a)(52), 46-1129,
59-29a22(b)(10) and 65-6747.
(q) Exceptions contained in the following statutes as certified by the
revisor of statutes to the president of the senate and the speaker of the
house of representatives pursuant to subsection (e) that have been
reviewed during the 2021 legislative session are hereby continued in
existence: 22-2302(c)(4)(J) and (c)(6)(B), 22-2502(e)(4)(J) and (e)(6)(B)
and 65-6111(d)(4).
Sec. 3. K.S.A. 45-229 is hereby repealed.
Sec. 2. 4. This act shall take effect and be in force from and after its
publication in the statute book.
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