Is a Defendant Entitled to a Record of the Preliminary Hearing Before Trial?

In State v. Kelley, 498 P.2d 87 (Kan. 1972), the Kansas Supreme Court addressed the question of whether a defendant is entitled to a transcript of the preliminary hearing before trial. This case clarifies the circumstances under which a defendant may request and receive a transcript and the timing of such a request in relation to the upcoming trial.

Key Points from State v. Kelley:

1. Right to a Preliminary Hearing Transcript:

   • Under Kansas law, both the prosecution and defense have the right to request a transcript of the preliminary hearing. However, this request must be made in a timely manner to allow adequate time for the transcription to be completed before the trial. The defendant is entitled to this record if they are willing to bear the cost or if the court determines that the transcript is necessary for the defendant's defense, especially if the defendant is indigent.

2. Timeliness of the Request:

   • Any request for a transcript must be made with sufficient time to prevent delays in the trial. The court emphasized that a transcript request should not result in a suspension of the trial while the transcript is prepared. In Kelley’s case, the timing of the request was a crucial factor in determining whether the defendant would receive a transcript.

3. Transcripts for Indigent Defendants:

   • If a defendant cannot afford the cost of transcription, the court must determine whether the transcript is necessary for the defense. This decision is made on a case-by-case basis, depending on whether the absence of a transcript would hinder the defendant’s ability to present an adequate defense. If deemed necessary, the transcript may be provided at state expense.

4. Adequate Substitution:

   • In this case, Kelley’s request for a transcript was denied. The court found that the defendant's attorney, who represented him at the preliminary hearing, had an adequate recollection of the testimony and that access to the court reporter’s notes was a sufficient substitute for a full transcript. This was an important factor in the court's decision, as the defense counsel had the opportunity to review the reporter’s notes when necessary.

5. Court’s Ruling:

   • The Kansas Supreme Court upheld the trial court’s decision to deny Kelley’s request for a transcript. The court ruled that a transcript was not essential in this case, given the attorney’s familiarity with the testimony from the preliminary hearing and the availability of the reporter's notes. The court also reiterated the importance of timely requests for transcripts to avoid delaying the trial process.

Conclusion:

The decision in State v. Kelley establishes that a defendant has the right to request a transcript of the preliminary hearing, but the request must be made far enough in advance to avoid trial delays. If the defendant is indigent and unable to pay for the transcript, the court will determine whether the transcript is necessary for the defendant to present an adequate defense. In cases where the defendant’s attorney is familiar with the testimony or has access to alternative resources (such as reporter’s notes), the court may find that a transcript is not essential. The case underscores the importance of making timely requests and the role of the court in balancing the defendant's rights with the efficiency of the judicial process.

The Kansas Supreme Court affirmed that Kelley’s rights were not violated by denying his request for a transcript, as his attorney had adequate access to the information needed for his defense.