In Re the Care & Treatment of Foster (2006)

In re Care & Treatment of Foster, 280 Kan. 845 , 127 P.3d 277, 286 (2006).

See In re Foster, 280 Kan. at 861 ("On retrial, such statements by counsel and associated evidence are prohibited.").

Foster, 127 P.3d at 280, 286 .

Foster, 127 P.3d at 280, 286 .

During closing argument, the prosecutor stated, “[A]s I told you in my opening statement and as I think the 22 evidence has shown to you, this man has gone through many levels of reviews . . . .” Id. at 282 (emphasis omitted).

In its recent opinion reversing this court’s Foster decision, however, the Kansas Supreme Court declined to apply tire prosecutorial misconduct standard. 280 Kan. at 853 (characterizing it as “our stair-step analysis articulated in State v. Tosh, 278 Kan. 83 , 91 P.3d 1204 [2004]”).

Not surprisingly, the Kansas Supreme Court held "allowing the State ... to tell the jurors - before it even hears any evidence - that a multidisciplinary team of professionals, a team of prosecutors (including *910 the attorney prosecuting the case), and the judge have all previously determined that sexually violent predator commitment proceedings should proceed against [the respondent] is extremely prejudicial." Id. at 288.

In the Matter of the Care and Treatment of Foster , 127 P.3d 277, 284 (Kan. 2006).

See Foster , 280 Kan. at 857 , 127 P.3d 277 .

See In re Care & Treatment of Foster, 280 Kan. 845 , 127 P.3d 277 (2006).

K.S.A. 59-29a06(a); K.S.A. 2010 Supp. 59-29a07(a), (e); see also In re Care & Treatment of Foster, 280 Kan. 845, 853-61 , 127 P.3d 277 (2006) (although the trial is characterized as civil in nature, it possesses many characteristics of a criminal proceeding).

See In re Care & Treatment of Foster, 280 Kan. 845 , Syl. ¶ 9, 127 P.3d 277 (2006).

See In re Care and Treatment of Foster, 280 Kan. 845 , Syl. ¶ 4, 127 P.3d 277 (2006) (“It is improper and misconduct for counsel to argue that his or her case or some aspect of it has judicial approval.”).

See In re Care & Treatment of Foster, 280 Kan. 845, 853 , 7 127 P.3d 277 (2006).

See Foster, 280 Kan. at 862 (finding polygraph test results reliable enough to be admitted in probation revocation proceedings).

See In re Care & Treatment of Foster, 280 Kan. 845, 858-59 , 127 P.3d 277 (2006) (noting that "Kansas case law is replete with references to the position of trust occupied by a judge in a jury trial" and collecting examples).

See In re Care & Treatment of Foster , 280 Kan. 845 , 858, 127 P.3d 277 (2006) (prosecutor's statement about her personal involvement in decision to institute involuntary commitment proceedings improper).

See In re Care & Treatment of Foster, 280 Kan. 845, 853 , 127 P.3d 277 (2006). *811 A motion for summary judgment is not available in this type of proceeding.

The ultimate step in the process of commitment is the right of trial by jury “to determine whether the person is a sexually violent predator.” K.S.A. 59-29a06; see also In re Care & Treatment of Foster, 280 Kan. 845, 853-61 , 127 P.3d 277 (2006) (although the trial is characterized as civil in nature, it possesses many characteristics of a criminal proceeding).

See In re Care & Treatment of Foster, 280 Kan. 845 , Syl. ¶ 9, 127 P.3d 277 (2006).

See Foster, 127 P.3d at 280–88; Stenzel, 827 N.W.2d at 694–95, 704–08.

See In re Foster, 127 P.3d 277, 282-88 (Kan. 2006); In re Det. of Stenzel, 827 N.W.2d 690, 694-96, 704-08 (Iowa 2013). 12 Additionally, this Court has previously refused to apply the “fundamental error” doctrine in other SVP cases.

See In re Foster, 280 Kan. 845 , Syl. ¶ 10 (instructions approved on appeal if substantially correct and jury could not reasonably be misled by them); see Unruh v. Purina Mills, 289 Kan. 1185, 1197-98 , 221 P.3d 1130 (2009) (same standards apply to jmy verdict forms). b.