Brief⁽¹⁾

S.B. 449 amends criminal procedure in regard to convictions of persons in regard to lesser included offenses in the prosecution of crimes. The bill adds a provision allowing the conviction of a person of a lesser crime "where all elements of the lesser crime are identical to some of the elements of the crime charged." The bill also provides that no party may assign as error the giving or the failure to give an instruction, including a lesser included offense instruction, unless the party objects before the jury retires to consider its verdict. It requires a judge to give a lesser included offense instruction when there is "some evidence" which could reasonably justify a conviction of the lesser offense.

The amendment deletes a requirement in current law that the lesser included offense be proved if the crime charged were proved. It also deletes a requirement in cases where the crime charged may include some lesser crime that the trial judge instruct the jury on all of the lesser included offenses and a provision which states that, if a defendant objects to giving the instructions, this shall be considered a waiver of any objection to any error in the failure to give the instructions and the failure shall not be a basis for reversal of the case on appeal.

The Senate Committee amendment was technical.

Background

The bill was recommended by the Criminal Law Advisory Committee of the Kansas Judicial Council, the Kansas District Judges Association, the Pattern Jury Instructions Criminal Advisory Committee of the Kansas Judicial Council, the Kansas County and District Attorney's Association, a Kansas Court of Appeals Judge, and others. Proponents said the current law in regard to lesser included offenses was confusing and difficult to understand and administer. The change basically adopts a standard regarding lesser included offenses used by the federal court system.

The bill has no fiscal impact.

1. *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.ink.org/public/legislative/fulltext-bill.html.