SESSION OF 2024
SUPPLEMENTAL NOTE ON HOUSE SUBSTITUTE FOR
SENATE BILL NO. 318
As Recommended by House Committee on
Corrections and Juvenile Justice
Brief*
House Sub. for SB 318 would amend the Code of
Evidence to specify how a statutory or common law
presumption or inference against a criminal defendant is to be
construed and to establish a permissive inference when a
person is found to possess certain quantities of a controlled
substance.
Rules of Evidence
The bill would add provisions to the Rules of Evidence
regarding how presumptions or inferences operate. The bill
would provide in criminal cases, presumptions or inferences,
including those in which certain facts are evidence of another
fact or of guilt, are allowable. Further, the bill would clarify that
the judge may reject any presumption or inference, and the
judge would be prohibited from instructing the jury they must
accept a fact against the defendant.
The bill would permit the judge to include instructions on
presumptions or inferences only if the presumption or
inference is supported by the facts. When such instruction
occurs, the judge would be required to instruct the jury that:
●The jury is to consider all facts of the case with the
presumption or inference;
____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org ●The jury could accept or reject the presumption or
inference when determining whether the
prosecution has met the burden of proof; and
●The burden of proof never shifts to the defendant.
Intent to Distribute—Permissive Inference
Under the possession with intent to distribute provisions
of the Kansas Criminal Code, a rebuttable presumption of an
intent to distribute exists if a person possesses certain
quantities of controlled substances.
The bill would replace the rebuttable presumption with
“an inference,” if the facts support such an inference.
[Note: Black’s Law Dictionary defines the term
“rebuttable presumption” to mean a legal inference or
assumption that a fact exists because of the known or proven
existence of some other fact or group of facts. The term
“permissive inference” is defined to mean a presumption that
a trier of fact is free to accept or reject from a given set of
facts.]
Technical Amendments
The bill would also make technical amendments,
including correcting a statutory reference.
Background
The House Committee on Corrections and Juvenile
Justice recommended a substitute bill incorporating
provisions related to a permissive inference of an intent to
distribute a controlled substance.
SB 318, as passed by the Senate, would have required
city attorneys to review certain audio and video evidence and
2- 318 remove a requirement that municipal courts collect
fingerprints of certain persons convicted of violation of certain
driver’s license or liability insurance ordinances.
[Note: The audio/visual evidence and fingerprinting
provisions were not retained in the substitute bill.]
HB 2385 (Permissive Inference-Intent to Distribute)
The bill was introduced by the House Committee on
Corrections and Juvenile Justice in the 2023 Session at the
request of Representative E. Smith on behalf of
Representative Waggoner.
House Committee on Corrections and Juvenile Justice
In the House Committee hearing on February 15, 2024,
proponent testimony was provided by two representatives of
the Office of the Attorney General. The proponents stated
evidence is needed to support an inference and that the
amendments would primarily affect bench trials because a
prosecutor already has the authority to choose not to give a
jury instruction concerning a rebuttable presumption.
Written-only neutral testimony was provided by a
representative of the Kansas Judicial Council.
No other testimony was provided.
The House Committee made technical amendments to
the bill.
Fiscal Information
According to the fiscal note prepared by the Division of
the Budget on HB 2385, as introduced, the Kansas
Sentencing Commission estimates enactment of the bill may
have an effect on prison admissions, bed space, and the
3- 318 workload of the Commission, but an effect cannot be
determined.
The Office of Judicial Administration and the Department
of Corrections indicate enactment of the bill would not have a
fiscal effect. Any fiscal effect associated with the bill is not
reflected in The FY 2024 Governor’s Budget Report.
Crimes; Rules of Evidence; controlled substances; permissive inference; rebuttable
presumption
4- 318