report of the kansas judicial council death penalty advisory

Issue 4. Whether current statutory and case law is sufficient to ensure, to the extent
reasonably possible, that no innocent person is ever sentenced to death?
One of the issues with which this committee is charged is exploring whether the current
statutory and case law in Kansas is sufficient to ensure, to the extent reasonably possible, that no
innocent person is ever sentenced to death. In order to facilitate discussion of this issue, the
Committee decided that it was proper to examine ways in which other states have examined and
answered the same question. While it appears that current Kansas statutory and case law is sufficient
to address many of the concerns identified by the recent studies made in Connecticut and Illinois,
both state reports also contain additional recommendations not present in current Kansas statutory
and case law that have the potential to further reduce the risk that an innocent person will be
sentenced to death. However, while these measures can be identified, the question of whether it is
advisable or reasonable to adopt such additional measures here in Kansas will require an in-depth
study focusing on the benefits and costs of each measure.
In January of 2003, the State of Connecticut’s Commission on the Death Penalty issued a
report that addressed a similar question. See State of Connecticut Commission on the Death Penalty,
Study Pursuant to Public Act No. 01-151 of the Imposition of the Death Penalty in Connecticut, 56-
62 (Jan. 8, 2003) (conducting “An examination of the safeguards that are in place or should be
created to ensure that innocent persons are not executed”). In its report, the Commission found that,
according to the legal experts it consulted, “some of the factors that contribute to the arrest,
conviction, and imposition of death sentences upon innocent people are lack of DNA testing,
ineffective counsel, prosecutorial misconduct [during discovery], mistaken eyewitness testimony,
false confessions and testimony from informants.” Id. at 56. The identification of these categories
is generally consistent with most of the other reports of state commissions investigating similar
questions regarding the death penalty. See Report of the Governor’s Commission on Capital
Punishment for the State of Illinois, i-iii (April 15, 2002); Nevada Legislative Commission’s
Subcommittee to Study the Death Penalty and Related DNA Testing (Work Session Document,
January 4, 2002).
The determinations of the Connecticut and Illinois Commissions are extremely valuable, as
they represent the most comprehensive and detailed studies of the question regarding what
appropriate safeguards are necessary and feasible.
1. DNA Testing
Currently, Kansas law provides that any person in custody upon conviction of murder or rape
may petition the court for DNA testing of material that: 1) is related to the investigation or
prosecution that resulted in the conviction; 2) is in the actual or constructive possession of the state,
and 3) was not previously subjected to DNA testing, or can be subjected to retesting with newer
techniques that provide a “reasonable likelihood of more accurate and probative results”. K.S.A.
2003 Supp. 21-2512(a). The court must order such DNA testing if it determines that the testing may
produce noncumulative, exculpatory evidence relevant to the claim that the petitioner was
wrongfully convicted or sentenced. K.S.A. 2003 Supp. 21-2512(c). The Kansas Bureau of
-15-