22-2902.
Preliminary examination.
(a) The state and every person charged with a felony shall have a right to a preliminary examination before a magistrate, unless such charge has been issued as a result of an indictment by a grand jury.
(b) The preliminary examination shall be held before a magistrate of a county in which venue for the prosecution lies within 14 days after the arrest or personal appearance of the defendant. Continuances may be granted only for good cause shown.
(c) The defendant shall not enter a plea at the preliminary examination. The defendant shall be personally present and except for witnesses who are children less than 13 years of age, the witnesses shall be examined in the defendant's presence. The defendant's voluntary absence after the preliminary examination has been begun in the defendant's presence shall not prevent the continuation of the examination. Except for witnesses who are children less than 13 years of age, the defendant shall have the right to cross-examine witnesses against the defendant and introduce evidence in the defendant's own behalf. If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant. When the victim of the felony is a child less than 13 years of age, the finding of probable cause as provided in this subsection may be based upon hearsay evidence in whole or in part presented at the preliminary examination by means of statements made by a child less than 13 years of age on a videotape recording or by other means.
(d) The defendant and the state shall be permitted to present the testimony of a witness through a two-way electronic audio-video communication device.
(e) If the defendant and the state waive preliminary examination, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case.
(f) Any judge of the district court may conduct a preliminary examination, and a district judge may preside at the trial of any defendant even though such judge presided at the preliminary examination of such defendant.
(g) The complaint or information, as filed by the prosecuting attorney pursuant to K.S.A. 22-2905, and amendments thereto, shall serve as the formal charging document at trial. When a defendant and prosecuting attorney reach agreement on a plea of guilty or nolo contendere, the defendant and the prosecuting attorney shall notify the district court of such agreement and arrange for a time to plead, pursuant to K.S.A. 22-3210, and amendments thereto.
(h) The judge of the district court, when conducting the preliminary examination, shall have the discretion to conduct arraignment, subject to assignment pursuant to K.S.A. 20-329, and amendments thereto, at the conclusion of the preliminary examination.
History:
L. 1970, ch. 129, § 22-2902; L. 1976, ch. 163, § 10; amended by Supreme Court (order dated December 5, 1980); eff. January 21, 1981; L. 1986, ch. 115, § 59; L. 1993, ch. 133, § 1; L. 1999, ch. 159, § 5; L. 2006, ch. 70, § 1; L. 2010, ch. 135, § 17; L. 2022, ch. 76, § 5; July 1.
Notes of Decisions
Cited in
121
cases (
22 in the last 5 years), 1978–2026 · leading case:
State v. Rivera, 83 P.3d 169 (Kan. 2004).
State v. Rivera, 83 P.3d 169 (Kan. 2004).
· cites it 9× “It argues that the Court of Appeals improperly applied K.S.A. 2002 Supp. 22-2902(2) without fully analyzing the relevant circumstances surrounding the delay between Rivera’s arrest and his preliminary hearing.”
In re D.E.R., 225 P.3d 1187 (Kan. 2010).
· cites it 13× “recent appellate decisions?” To the extent the State questions whether the statutory procedure for a preliminary examination under the adult criminal code, K.S.A. 22-2902, applies to a proceeding under the Juvenile Code, we find that it does not.”
State v. Valladarez, 206 P.3d 879 (Kan. 2009).
· cites it 6× “” K.S.A. 20-329 allows a chief judge of a judicial district to assign cases.”
State v. Mays, 85 P.3d 1208 (Kan. 2004).
· cites it 3× “Mays argues that the delay between his arrest and preliminary hearing violated his right to a speedy trial, as provided in K.S.A. 2003 Supp. 22-2902. K.S.A. 2003 Supp.”
State v. Lloyd, 375 P.3d 1013 (Kan. Ct. App. 2016).
· cites it 2× “It is well established that in eveiy felony case—except for a grand jury indictment—a defendant is entitled to a preliminaiy hearing, and a district court must find “probable cause to believe a felony has been committed” before a defendant maybe bound over for trial.”
State v. Betts, 514 P.3d 341 (Kan. 2022).
· cites it 2× “See K.S.A. 2021 Supp. 22-2902(3) (probable cause finding at preliminary examination).”
State v. Butler, 897 P.2d 1007 (Kan. 1995).
· cites it 4× “The majority, in effect, renders the defendant's right to a preliminary hearing under K.S.A. 1994 Supp. 22-2902 meaningless. The State could simply file the information directly in the district court and proceed with arraignment and trial.”
State v. Seems, 84 P.3d 606 (Kan. 2004).
· cites it 5× “The court had jurisdiction to conduct a preliminary hear *306 ing, as K.S.A. 2003 Supp. 22-2902(1) grants the defendant charged with a felony “a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand…”
State v. Bolze-Sann, 352 P.3d 511 (Kan. 2015).
· cites it 2× “See K.S.A. 22-2902 (defining State's burden of establishing probable cause during preliminary examination).”
State v. Knighten, 917 P.2d 1324 (Kan. 1996).
· cites it 3× “However, he contends that once he was arrested and charged prior to the convening of the grand jury, he was entitled to a preliminary hearing under the provisions of K.S.A. 22-2902(1): “Every person arrested on a warrant charging a felony or served with a summons charging a…”
State v. Bockert, 893 P.2d 832 (Kan. 1995).
· cites it 4× “K.S.A. 1993 Supp. 22-2902(1). If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction…”
State v. Jones, 228 P.3d 394 (Kan. 2010).
· cites it 2× “It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.”
— K.S.A. § 22-2902(1) — 26 cases
State v. Knighten, 917 P.2d 1324 (Kan. 1996).
“However, he contends that once he was arrested and charged prior to the convening of the grand jury, he was entitled to a preliminary hearing under the provisions of K.S.A. 22-2902(1): “Every person arrested on a warrant charging a felony or served with a summons charging a…”
State v. Butler, 897 P.2d 1007 (Kan. 1995).
“The majority, in effect, renders the defendant's right to a preliminary hearing under K.S.A. 1994 Supp. 22-2902 meaningless. The State could simply file the information directly in the district court and proceed with arraignment and trial.”
In re D.E.R., 225 P.3d 1187 (Kan. 2010).
“recent appellate decisions?” To the extent the State questions whether the statutory procedure for a preliminary examination under the adult criminal code, K.S.A. 22-2902, applies to a proceeding under the Juvenile Code, we find that it does not.”
State v. Rivera, 83 P.3d 169 (Kan. 2004).
“It argues that the Court of Appeals improperly applied K.S.A. 2002 Supp. 22-2902(2) without fully analyzing the relevant circumstances surrounding the delay between Rivera’s arrest and his preliminary hearing.”
— K.S.A. § 22-2902(2) — 8 cases
State v. Rivera, 83 P.3d 169 (Kan. 2004).
“It argues that the Court of Appeals improperly applied K.S.A. 2002 Supp. 22-2902(2) without fully analyzing the relevant circumstances surrounding the delay between Rivera’s arrest and his preliminary hearing.”
State v. Mays, 85 P.3d 1208 (Kan. 2004).
“Mays argues that the delay between his arrest and preliminary hearing violated his right to a speedy trial, as provided in K.S.A. 2003 Supp. 22-2902. K.S.A. 2003 Supp.”
In re D.E.R., 225 P.3d 1187 (Kan. 2010).
“recent appellate decisions?” To the extent the State questions whether the statutory procedure for a preliminary examination under the adult criminal code, K.S.A. 22-2902, applies to a proceeding under the Juvenile Code, we find that it does not.”
— K.S.A. § 22-2902(3) — 53 cases
State v. Lloyd, 375 P.3d 1013 (Kan. Ct. App. 2016).
“It is well established that in eveiy felony case—except for a grand jury indictment—a defendant is entitled to a preliminaiy hearing, and a district court must find “probable cause to believe a felony has been committed” before a defendant maybe bound over for trial.”
State v. Betts, 514 P.3d 341 (Kan. 2022).
“See K.S.A. 2021 Supp. 22-2902(3) (probable cause finding at preliminary examination).”
State v. Seems, 84 P.3d 606 (Kan. 2004).
“The court had jurisdiction to conduct a preliminary hear *306 ing, as K.S.A. 2003 Supp. 22-2902(1) grants the defendant charged with a felony “a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand…”
— K.S.A. § 22-2902(4) — 3 cases
— K.S.A. § 22-2902(6) — 2 cases
— K.S.A. § 22-2902(7) — 5 cases
State v. Valladarez, 206 P.3d 879 (Kan. 2009).
“” K.S.A. 20-329 allows a chief judge of a judicial district to assign cases.”
In re D.E.R., 225 P.3d 1187 (Kan. 2010).
“recent appellate decisions?” To the extent the State questions whether the statutory procedure for a preliminary examination under the adult criminal code, K.S.A. 22-2902, applies to a proceeding under the Juvenile Code, we find that it does not.”
— K.S.A. § 22-2902(a) — 2 cases
— K.S.A. § 22-2902(b) — 4 cases
— K.S.A. § 22-2902(c) — 3 cases
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