The Need to Know: Acquiring Your Client's Criminal History, 1216 KSBJ, 85 J. Kan. Bar Assn 9, 39 (2016)
| Author | By Ed Frock |
By Ed Frock
This article examines the fairness of the Kansas system that prevents a criminal defendant from getting the documents and records of his prior criminal history before the completion of the Pre-Sentence Investigation (PSI) after a guilty plea or no contest plea has been entered. To a lesser extent it examines the defendant's inability to secure the prior criminal records of witnesses called on behalf of the State. Nothing in K.S.A. 22-4709 (b) requires such a disclosure and it only permits the defendant the "right of inspection" coupled with the ability to "make notes of the information."
The first time I represented a criminal client in Kansas I asked for the defendant's criminal history because I was unsure if what he was telling me was correct. The response from the prosecutor was that there existed a statute which prevented me from receiving a written or printed history but that I could stand behind the county attorney and "look over" his shoulder while he worked on his computer to examine my client's criminal history. My response was: "Haven't you heard Brady?”
In Brady v. Maryland, 373 U.S. 83, Justice William O. Douglas wrote these words: "We now hold that the suppression of evidence favorable to an accused person upon request violates the due process clause where evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Douglas' rationale, in part, was that: "... our system of justice suffers when any accused is treated unfairly." Douglas' opinion and rationale were based in part on comments made by Simon Sobeloff, while serving as United States Solicitor General, who stated: "The Solicitor General is not neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick Lihmann, that the Government wins its point when justice is done in its courts."
In Kansas the relevance of the prior criminal history cannot be overstated. Under the cumulative sentencing grid now used to progressively enhance punishment of a defendant, failure to openly and fully disclose the full nature of a defendant's criminal history can be prejudicial. Such evidence is material to the decision a defendant must make whether to proceed to trial or enter a plea of guilty or no contest. In Bagley v. United States, 473 U.S. 667 (1985), the court defined the term "material to guilt or punishment" as found in Brady as: "the requirement of materiality is that the suppressed evidence might have affected the outcome of the trial."
Not every person accused of a crime proceeds to trial. In fact, very few do. But in Kansas each person who...
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