Late Witness Endorsement Denials Are Discretionary and May Be Appealed as “Suppressing Evidence” When They Substantially Impair Prosecution

Precedents Cited

1) Interlocutory appeal and “suppressing evidence” (K.S.A. 22-3603)

• State v. Myers, 314 Kan. 360, 366, 499 P.3d 1111 (2021): The Court relied on Myers for two critical propositions: (a) “suppressing evidence” includes rulings excluding evidence that substantially impair prosecution; and (b) impairment need not make conviction impossible—appellate courts should avoid “run-of-the-mill” evidentiary appeals but must accept jurisdiction when substantial impairment is shown.
  Craig applies Myers to a nontraditional “suppression” posture (witness endorsement denial), emphasizing functional impact over formal labels.
• State v. Newman, 235 Kan. 29, 34-35, 680 P.2d 257 (1984): Quoted via Myers for the broadened meaning of “suppressing evidence” and cited for the statute’s purpose: allowing review of pretrial rulings that may be determinative of the case. Newman supplies the conceptual bridge: “suppression” is not limited to constitutional exclusionary rules.
• City of Wichita v. Trotter, 316 Kan. 310, 312, 514 P.3d 1050 (2022): Used for the standard of review—appellate jurisdiction is a question of law reviewed without deference.
• Benchmark Property Remodeling v. Grandmothers, Inc., 319 Kan. 227, 233, 553 P.3d 974 (2024): Cited for the constitutional/statutory nature of appellate jurisdiction (“purely statutory”) and for de novo review on statutory interpretation.

2) Late endorsement of witnesses (K.S.A. 22-3201[g])

• State v. Brosseit, 308 Kan. 743, 747-54, 423 P.3d 1036 (2018): Central to the Court of Appeals’ reasoning—and the Supreme Court’s correction. Brosseit describes the traditional rule that late endorsement is permissible unless it causes “actual prejudice” to the defense, often discussed in terms of surprise and criticality of testimony.
  Craig’s key move is to confine that Brosseit-style “actual prejudice/surprise” framing to review of orders granting late endorsement, and to reject any inference that the same framework creates a requirement before a judge may deny late endorsement.
• State v. Campbell, 207 Kan. 152, 153, 483 P.2d 495 (1971): Reinforces that endorsement decisions are within the district court’s “sound discretion,” reviewable only for abuse, and links reversal to both abuse and resulting material prejudice. Craig uses Campbell to underscore discretion’s breadth.
• State v. Price, 55 Kan. 606, 608, 40 P. 1000 (1895), and the historical line: State v. Bell, 273 Kan. 49, 53-54, 41 P.3d 783 (2002); State v. Green, 252 Kan. 548, 553-54, 847 P.2d 1208 (1993); State v. Thyer, 143 Kan. 238, 239, 53 P.2d 907 (1936); State v. Tassell, 87 Kan. 861, 864, 126 P. 1090 (1912); State v. Cook, 30 Kan. 82, 85, 1 P. 32 (1883): These cases collectively establish Kansas’ long acceptance that courts may allow endorsement after filing—sometimes even during trial—subject to fairness and defendant rights. Craig leverages this history to show that discretion is broad, but it does not transform into a one-way ratchet requiring judges to grant late endorsements absent surprise.
• State v. Foster, 202 Kan. 259, 260, 447 P.2d 405 (1968): Illustrates that even a “flagrant violation” of endorsement requirements may be cured when no prejudice is shown. Craig cites Foster to highlight the statutory “shall endorse” language’s practical flexibility in Kansas practice.
• State v. Ferguson, 228 Kan. 522, 526, 618 P.2d 1186 (1980): Emphasizes endorsement is discretionary and, when granted, fairness can be protected by time to interview/cross-check. Craig uses Ferguson to resist converting the “test” for granting endorsement into a constraint on denying endorsement.

3) Abuse of discretion framework

• State v. Hillard, 313 Kan. 830, 838, 491 P.3d 1223 (2021) (quoting State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 [2018]): Supplies the abuse-of-discretion tripartite test: error of law, error of fact, or no reasonable person would agree. Craig applies this to uphold denial as grounded in case-specific prejudice (delay/speedy trial), notwithstanding some improper commentary.

4) Other posture-specific authorities noted

• State v. Clay, No. 84,317, 2000 WL 36746069 (Kan. App. 2000) (unpublished opinion), and State v. McAlpine, No. 78,571, 1997 WL 35436573 (Kan. App. 1997) (unpublished opinion): Cited as rare instances involving denial/exclusion posture; McAlpine resembles the Court of Appeals’ approach (reversing denial where no surprise), while Clay addressed jurisdictional failure without substantial impairment. Craig uses these not as controlling law, but as context illustrating the unusual procedural posture.

Legal Reasoning

A. “Suppressing evidence” is functional, not purely constitutional

The Court’s first doctrinal contribution is to reaffirm and apply the functional definition of “suppressing evidence” under K.S.A. 22-3603. The term is not confined to exclusion of illegally obtained evidence; it includes any pretrial order that excludes prosecution evidence so as to substantially impair the State’s case. Craig extends this principle to the endorsement context: the denial of a witness endorsement motion can operate as an evidentiary exclusion when it prevents the State from presenting material testimony.

B. Substantial impairment was shown on this record

The Court agreed with the Court of Appeals that the excluded witnesses collectively supplied core components of the State’s proof: identity and cause of death (autopsy testimony), linkage of Craig to the vehicle and events, firearm ownership/transfer, and confessions. The Court emphasized that substantial impairment does not require total foreclosure of prosecution—consistent with State v. Myers.

C. The central clarification: discretion to deny is not conditioned on “surprise” findings

The Court drew a sharp doctrinal line between: (1) the limiting principle that restrains a district court from granting late endorsements when it would cause actual prejudice (often framed as surprise), and (2) the authority to deny late endorsements, which the Court held remains “wholly within” district court discretion.

In other words, the Brosseit-style “actual prejudice/surprise” inquiry functions primarily as a defendant-protective constraint on judicial permission to expand the State’s witness slate late. It is not a State-entitling rule that compels approval absent surprise.

D. Prejudice can be case-management and constitutional—here, speedy trial and counsel conflict

While “surprise” is commonly discussed in endorsement cases, the Court accepted a broader, practical conception of prejudice in this denial posture: the late endorsement would force defense counsel to withdraw due to conflicts, causing delay and potentially implicating constitutional speedy trial rights. The Court treated that as a legitimate, defendant-specific prejudice basis.

E. Handling of improper considerations

The district court’s frustration with the County Attorney’s Office and desire to “get [its] attention” was acknowledged as concerning. But the Supreme Court read the record to conclude the operative rationale was not punishment or office-wide grievance; it was case-specific prejudice (delay/speedy trial). Under the abuse-of-discretion test, that was sufficient to uphold the ruling.

Impact

1) Interlocutory appeals: endorsement denials can qualify as “suppression”

Prosecutors now have clearer authority to seek interlocutory review when a denial of endorsement effectively excludes evidence and substantially impairs prosecution. This may increase K.S.A. 22-3603 appeals in witness-endorsement disputes—especially when the denied witnesses are essential to proving identity, causation, linkage, or confessions.

2) Trial courts: reinforced discretion to deny late endorsements without a “surprise” predicate

The opinion fortifies district court control over late-stage witness additions. After Craig, it is more difficult for the State to argue that a judge must grant endorsement merely because the defense cannot claim surprise. District courts may deny late endorsements for case-specific fairness and constitutional concerns (e.g., counsel conflicts and delay), even where the witness is known.

3) Litigation strategy: earlier conflict vetting and witness endorsement discipline

The ruling incentivizes prosecutors to (a) audit endorsement lists early, (b) anticipate conflicts with defense counsel, and (c) avoid last-minute endorsement requests that could trigger withdrawal/delay. Defense counsel, conversely, may frame prejudice not only as surprise but as structural harm (loss of counsel continuity, forced continuances, speedy trial risk).

4) Appellate framing: separate standards for “grant” versus “deny” postures

A key doctrinal consequence is the posture-sensitive approach to endorsement decisions: the “actual prejudice/surprise” line of cases remains vital when reviewing grants of late endorsement, but it does not automatically supply a reversible-error yardstick when reviewing denials.