SESSION OF 2021
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2366
As Recommended by House Committee on
Judiciary

Brief*
HB 2366 would create law in the Kansas Code of
Criminal Procedure (Code) regarding jailhouse witness
testimony.

Disclosure Requirements
The bill would require, in any criminal prosecution, the
prosecuting attorney (prosecutor) to disclose any intent to
introduce testimony of a jailhouse witness, as defined by the
bill, regarding statements made by a suspect or defendant,
while the jailhouse witness and suspect or defendant were
both incarcerated, within the time provided by the section of
the Code governing discovery.
The bill would also require the prosecutor to disclose to
the defense:
● The criminal history of the jailhouse witness,
including pending or dismissed criminal charges;
● The jailhouse witness’s cooperation agreement and
any benefit, as defined by the bill, that has been
requested by, provided to, or will be provided in the
future to the witness;
● The contents of any statement allegedly given by
the suspect or defendant to the jailhouse witness,
____________________
*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
 and the contents of any statement given by the
witness to law enforcement regarding the
statements allegedly made by the suspect or
defendant, including the time and place such
statements were given;
● Any information regarding the jailhouse witness
recanting testimony or statements, including the
time and place of recantation, the nature of the
recantation, and the names of the people present
at the recantation; and
● Any information regarding other criminal cases in
which the testimony of the jailhouse witness was
introduced or was intended to be introduced by a
prosecutor regarding statements made by a
suspect or defendant, including any cooperation
agreement and any benefit the witness received in
such case.
The court could allow the prosecutor to comply with
these disclosure requirements after the time limit described
above if the court finds the jailhouse witness was not known
or the information the bill requires to be disclosed could not
be discovered or obtained by the prosecutor exercising due
diligence within such time period.
If the court finds that disclosure of the above information
is likely to cause bodily harm to the jailhouse witness, the bill
would allow the court to order that the evidence be viewed
only by defense counsel and not by the defendant or others,
or issue a protective order.

Pre-Trial Hearing in Certain Cases
In a criminal prosecution for murder or rape in which the
prosecutor intends to introduce the testimony of a jailhouse
witness, the bill would require, upon the defendant’s motion,
the court to conduct a pre-trial hearing to determine whether

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the witness’s testimony exhibits reliability and is admissible
based on the following factors:
● Extent to which the witness’s testimony is
confirmed by other evidence;
● Specificity of the testimony;
● Extent to which the testimony contains details that
would be known only by the perpetrator of the
offense;
● Extent to which the details of the testimony could
be obtained from a source other than the suspect
or defendant; and
● Circumstances under which the witness provided
the information to the prosecutor or a law
enforcement officer, including whether the witness
was responding to leading questions.
If the prosecutor fails to show by a preponderance of the
evidence that the witness’s testimony is reliable, the bill would
require the court to exclude the testimony at trial.

Database
The bill would require each prosecutor’s office to
maintain a central record containing information regarding
cases in which jailhouse witness testimony is introduced or is
intended to be introduced by a prosecutor regarding
statements made by a suspect or defendant, the substance of
such testimony, and any benefit requested by, provided to, or
to be provided in the future to such witness in connection with
testimony provided by the witness.
The bill would require the prosecutor’s office to forward
this information to the Kansas Bureau of Investigation (KBI),
which wold be required to maintain a statewide database of
such information. The database would be accessible only to
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prosecutors and would otherwise remain confidential and not
subject to the Kansas Open Records Act (KORA). This
confidentiality provision would expire on July 1, 2026, unless
the Legislature review and reenacts it before that date.

Victim Notification; Jury Instructions
If a jailhouse witness receives any benefit in connection
with offering or providing testimony against a defendant, the
bill would require the prosecutor to notify any victim
connected to the criminal prosecution.
If the testimony of a jailhouse witness is admitted into
evidence, the bill would require the jury be instructed that
such testimony was provided by a jailhouse witness and
informed of any benefit requested by, provided to, or to be
provided to the jailhouse witness in connection with providing
the testimony.

Background
The bill was introduced by the House Committee on
Judiciary at the request of Representative Patton on behalf of
the Innocence Project.

House Committee on Judiciary
In the House Committee hearing on March 16, 2021,
representatives of the Innocence Project and the Midwest
Innocence Project and three private citizens testified as
proponents, stating the bill the bill would help prevent
wrongful convictions by creating safeguards for the use of
jailhouse witness testimony. Representatives of Americans for
Prosperity, Kansas Association of Criminal Defense Lawyers,
Kansas Coalition Against Sexual and Domestic Violence, and
Metro Organization for Racial and Economic Equity; an
attorney; and a private citizen provided written-only
proponent testimony. No other testimony was provided.
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Fiscal Information
According to the fiscal note prepared by the Division of
the Budget on the bill, the Office of Judicial Administration
states enactment of the bill could increase the length of cases
and time spend by district court judicial personnel in
researching and hearing cases, but a fiscal effect cannot be
estimated.
The KBI estimates a higher level of security would be
required due to the confidentiality requirements of the bill,
which could incur incidental costs. Prosecuting attorneys
accessing the Kansas Criminal Justice Information System
(KCJIS) could incur minimal costs if they are not already
active users of KCJIS. The KBI indicates it could expand an
existing records management system into the KCJIS
infrastructure to fulfill the requirements of the bill. The KBI
estimates expenditures of $182,180 from the State General
Fund in FY 2022, which would include $165,000 for
concurrent user licensing, $12,410 for training and
installation, and $4,770 for maintenance for the first year. For
future fiscal years, the KBI estimates on-going expenditures
for system maintenance of $29,520.
The Office of the Attorney General states the bill would
increase case load and expenditures, but a precise fiscal
effect cannot be estimated.
The Department of Corrections indicates enactment of
the bill would not have a fiscal effect.
The Kansas Association of Counties states enactment of
the bill could increase safety monitoring at jails, but a fiscal
effect cannot be estimated. The League of Kansas
Municipalities states enactment of the bill would not have a
fiscal effect on cities.
Any fiscal effect associated with enactment of the bill is
not reflected in The FY 2022 Governor’s Budget Report.
Criminal prosecutions; jailhouse witness testimony; disclosures; database

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