SESSION OF 2024
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2385
As Amended by House Committee on
Corrections and Juvenile Justice

Brief*
HB 2385, as amended, 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 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.


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House Committee on Corrections and Juvenile Justice
In the House Committee hearing on February 14, 2024,
proponent testimony was provided by two representatives of
the Kansas County and District Attorneys Association. 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 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 the bill, as introduced, the Kansas Sentencing
Commission estimates enactment of the bill may have an
effect on prison admissions, bed space, and the 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


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Statutes affected:
As introduced: 60-416, 21-5705
As Amended by House Committee: 21-5705, 60-416