CAN AN ATTORNEY GET ACCESS TO THE AFFIDAVIT OR TESTIMONY THAT WAS USED TO GET A WARRANT?
The short answer, generally Yes. When law enforcement seeks an arrest warrant they will generally provide an affidavit in support of the arrest warrant, this affidavit is generally a very short summation of the evidence against the defendant. This affidavit is discoverable and will be turned over to the defense if requested by the defense. An attorney can request access to the affidavit or testimony used to obtain a warrant through the process of discovery. This typically occurs during the pre-trial phase of a criminal case, and the attorney can request access to any evidence that may be used against their client. However, the judge has discretion to deny access to certain parts of the affidavit or testimony if it would jeopardize an ongoing investigation or the safety of an individual.
This case addresses the following issue: State v. Thomas, 46 P.3d 543 (Kan. 2002).
Can an attorney get access to the affidavit or testimony that was used to get a warrant?
This court explored the issue of whether an attorney can get access to the affidavit or testimony that was used to get an arrest warrant. In exploring this issue, the court found that the statute governing the availability of affidavits or testimony allows either a defendant or his or her attorney to obtain at any time, upon request and payment of the necessary fee for such production, copies of the requested information. Id. at 546.
In November 1994, the defendant pled guilty to two counts of aggravated burglary, three counts of kidnapping, two counts of robbery, two counts of felony theft, one count of burglary, and one count of misdemeanor theft. Id. at 543-44. The trial court did not follow the State’s recommended sentence of 15 years to life because of the traumatic impact of the defendant’s crimes on the victims and sentenced him to 30 years to life followed by a 33-month consecutive sentence. Id. at 544. Therefore, the defendant appealed. Id. While one of the defendant’s appeals was pending, he filed a motion requesting the district court to send him a copy of the affidavits or sworn testimony provided to the court in support of the arrest and search warrants in his case. Id. The defendant’s motion made a reference to a Kansas statute which read, “Affidavits or sworn testimony in support of the probable cause requirement of this section shall not be made available for examination without a written order of the court, except that such affidavits or testimony when requested shall be made available to the defendant or the defendant’s counsel for such disposition as either may desire.” Id. at 545. Nonetheless, the trial court denied the request and the defendant appealed. Id. at 544.
During appeal, the defendant argued that under the specific wording of the Kansas statute, he had the right to examine any supporting affidavits or sworn testimony. Id. at 545. On the other hand, the State argued that the statute did not apply to post-conviction requests. Additionally, the state argued that since the defendant was represented by an attorney, he did not have a personal right under the statute to the documents. Id.
In addressing the State’s argument that the statute did not apply to post-conviction requests, the court noted that there was nothing in the statutory language that limited the application of the statute to pretrial matters. Id. In fact, the court stated that they would not interpret the statute in such a manner to add a limitation not clearly stated. Id.
In addressing the State’s argument that the documents should only be available to the defendant’s attorney (not the defendant), the court concluded that the trial court’s ruling that a defendant with an attorney could only have access to the documents through his or her attorney was illogical in light of the statute. Id. Furthermore, the court looked to the intent of the law-making body that created the statute and determined that the law-making body specifically stated in the statute that the defendant may have access to the documents regardless of the reason or request. Id. at 546.
In sum, the court held that either a defendant or his or her attorney was entitled to examine affidavits and sworn testimony used in support of the probable cause requirement for an arrest warrant or summons issued in his or her case. Id.