State v. McNeal: Kansas Clarifies Paths to Prove Fair-Cross-Section Claims, Rejects Race‑Switching Implicit‑Bias Instructions, and Reaffirms the Low Threshold for Miranda Waivers

Introduction

In State v. McNeal, No. 125,931 (Kan. July 25, 2025), the Kansas Supreme Court affirmed capital murder and rape convictions arising from a brutal assault and rape that led to the victim’s death. DNA led police to suspect Cornell A. McNeal; after arrest on an outstanding warrant, he received Miranda warnings and agreed to speak, offering a speculative explanation for the DNA evidence. Three days later, the victim died, and McNeal was charged with capital murder and rape. A jury convicted him; the district court merged the rape into capital murder for sentencing.

On appeal, McNeal raised four issues:

His Miranda waiver was not knowing and intelligent due to cognitive impairments.
His jury pool failed to represent a fair cross-section of the community because it contained no Black jurors.
The district court erred by refusing to present an implicit bias video and by denying his requested implicit bias instruction.
The court should have excused a juror for cause; having to use a peremptory strike caused prejudice.

The Court affirmed on all issues. The opinion both consolidates and clarifies Kansas doctrine in three important areas:

It reaffirms the low but legally sufficient threshold for a “knowing and intelligent” Miranda waiver and declines to elevate the State’s burden of proof above a preponderance of the evidence.
It clarifies how “systematic exclusion” in fair-cross-section claims may be proved—borrowing the “systematic decimation” formulation—and reiterates that a one-off panel composition is insufficient without a developed, data-driven record.
It holds that implicit-bias instructions encouraging jurors to engage in “race-switching” exercises are legally inappropriate because they invite reliance on imagined facts not in evidence, steering trial courts instead toward robust voir dire.

Summary of the Opinion

Miranda waiver. The Court held McNeal knowingly and intelligently waived his Miranda rights. The State met its burden (preponderance standard) by showing detectives read the rights aloud, provided a written form, confirmed understanding line-by-line, and obtained a signed waiver; prior law-enforcement contacts and invocations showed familiarity. Expert conflict over cognitive capacity was resolved by the district court, whose findings were supported by substantial competent evidence.
Fair cross-section. The claim failed for want of a developed record and proof of systematic exclusion. The Court described three ways to demonstrate systematic exclusion: total exclusion, substantial underrepresentation over a substantial period, or “systematic decimation” across selection stages with opportunities for discrimination. McNeal’s “res ipsa” theory (that the absence of Black jurors in his panel could not be random) lacked evidentiary support.
Implicit bias instruction/video. The district court properly rejected a video and written instruction that encouraged jurors to use a race-switching thought experiment, which is legally inappropriate because it invites jurors to consider imagined facts. Voir dire provided an appropriate avenue to address bias, and both sides in fact used it to probe racial bias.
For-cause challenge and prejudice. Even assuming error in denying a for-cause strike of juror M.H., there is no reversible error where the defendant removes the juror with a peremptory strike and cannot show prejudice from a biased juror who actually served. McNeal failed to demonstrate prejudice from juror G.F.’s service.

Detailed Analysis

1) Precedents Cited and How They Shaped the Decision

Miranda v. Arizona, 384 U.S. 436 (1966) and Berghuis v. Thompkins, 560 U.S. 370 (2010): Set the baseline—suspects must be warned, and warnings may be waived knowingly, intelligently, and voluntarily. Thompkins confirms that reading and understanding the warnings (written and oral) can suffice for a valid waiver.
Moran v. Burbine, 475 U.S. 412 (1986): Defines “knowing and intelligent” waiver as “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” The Court uses this standard to assess McNeal’s comprehension, not his appreciation of every downstream effect.
Colorado v. Spring, 479 U.S. 564 (1986): A valid waiver does not require knowledge of all possible topics of questioning or every possible consequence—critical to rejecting the idea that diminished capacity must encompass those specifics.
Fare v. Michael C., 442 U.S. 707 (1979) and Kansas cases applying the totality test: State v. Mattox, 305 Kan. 1015 (2017) and State v. Harris, 320 Kan. 31 (2025). Kansas’s six-factor totality test (mental condition; manner/duration; ability to communicate externally; age/intellect/background; fairness of officers; English proficiency) faithfully implements Fare.
State v. Perkins, 248 Kan. 760 (1991): Reaffirmed. Understanding that one has the right to a lawyer or to remain silent suffices for a knowing-and-intelligent waiver; requiring more would void most waivers. The Court endorses this “low bar” as consistent with federal law.
State v. G.O., 318 Kan. 386 (2024): Confirms the State’s burden to prove a valid Miranda waiver is by a preponderance of the evidence. The Court rejects McNeal’s invitation to raise the burden under the Kansas Constitution without historical or doctrinal support (citing State v. Bailey, 313 Kan. 895 (2021) on waiver from inadequate briefing).
Jury fair-cross-section: The Court relies on Taylor v. Louisiana, 419 U.S. 522 (1975), Duren v. Missouri, 439 U.S. 357 (1979), and Kansas authority (State v. Miller, 308 Kan. 1119 (2018); State v. Bailey, 251 Kan. 156 (1992)), and importantly cites the Tenth Circuit’s United States v. Test, 550 F.2d 577 (10th Cir. 1976) for three distinct proof routes for systematic exclusion (including “systematic decimation”). It also references State v. Jordan, 220 Kan. 110 (1976) to reject “percent mismatch” arguments without process-based evidence, and State v. Vonachen, 312 Kan. 451 (2020) on the appellant’s duty to designate a sufficient record.
Implicit bias instruction: The Court extends its earlier holding in State v. Nesbitt, 308 Kan. 45 (2018)—rejecting a race-switching instruction—by ruling that a video urging the same exercise is likewise legally inappropriate because it invites jurors to imagine facts not in evidence. It also cites State v. Hillyard, 316 Kan. 326 (2022) for the principle that when given instructions are legally appropriate, it does not matter if an alternative might be clearer or more thorough.
For-cause challenges: The Court’s prejudice analysis follows State v. Miller, 308 Kan. 1119 (2018) and State v. Manning, 270 Kan. 674 (2001) (disapproved on other grounds by State v. King, 288 Kan. 333 (2009)): No reversible error if the challenged juror was later removed by peremptory strike, absent a showing that a biased juror actually served.

2) The Court’s Legal Reasoning

Miranda: Knowing-and-Intelligent Waiver

Bifurcated review: The Court reviewed factual findings for substantial competent evidence and the suppression ruling de novo (citing State v. Bridges, 297 Kan. 989 (2013)).
Fact-specific evaluation: Detectives confirmed sobriety, English proficiency, and lack of recent injury. Detective Relph read each Miranda right, asked comprehension after each, provided a written form, and obtained a signed waiver. McNeal could read the form and had prior Miranda exposures (including prior invocations), supporting familiarity.
Expert dispute resolved by the trial court: The district court credited the State’s expert (Dr. Schroeder) in rejecting a global cognitive impairment that would vitiate comprehension, noting that even if deficits existed, they did not undermine understanding of the core rights. Appellate courts do not reweigh conflicting expert testimony.
Legal threshold reaffirmed: Drawing on Perkins, Burbine, Thompkins, and Spring, the Court underscores that “knowing and intelligent” focuses on understanding the rights and the basic consequence that statements may be used in court—not on every possible consequence or topic of questioning.
Burden of proof remains preponderance: The Court rejects an attempt to ratchet the State’s burden to “beyond a reasonable doubt” under the Kansas Constitution absent historical support or doctrinal development.

Fair Cross-Section: What Counts as “Systematic Exclusion”

Framework: The defendant must show (1) a distinctive group; (2) underrepresentation in venires compared to community composition; and (3) “systematic exclusion” in the selection process (Duren).
Clarified proof routes: The Court lists three ways to show systematic exclusion (adopting Test’s formulation): total exclusion, substantial underrepresentation over a substantial period, or “systematic decimation” at various stages of selection with obvious opportunities for discrimination.
Record shortcomings doom the claim: McNeal’s argument rested on the absence of Black jurors in his panel. He did not attack the jury-source lists or summons procedures; he offered no longitudinal data; and the record of venire composition was threadbare (relying chiefly on a prosecutor’s on-the-record count). Without a developed, data-driven record, the Court will not infer systemic flaws.

Implicit Bias: Why “Race-Switching” Instructions Are Improper

Legal inappropriateness: Mirroring Nesbitt, the Court holds that instructions (or videos) that recommend the race-switching exercise invite jurors to consider hypothetical, non-record facts, which is impermissible. That is true whether attempted before voir dire, before evidence, or in final instructions.
Preferred vehicle: voir dire: The opinion endorses robust voir dire to surface overt and implicit bias—precisely what occurred here, where both parties probed jurors’ views about race and sexual assault. The Court notes existing law and pattern instructions (PIK) have not adopted a race-switching bias instruction.
No error where an alternative, legally proper method was used: Under Hillyard, courts need not choose one “optimal” method if the method used is legally appropriate. Here, extensive voir dire served the function urged by the defense.

For-Cause Challenges and Prejudice

Two-step inquiry: Even if the trial court arguably errs in denying a for-cause strike, there is no reversible error if the juror is later excused peremptorily unless the defendant shows prejudice—i.e., that a biased juror actually sat.
Application: McNeal used a peremptory strike on M.H. He claimed he then could not strike G.F., who acknowledged personal experience with sexual assault within his family and initial concerns about bias. But G.F. ultimately affirmed he could follow the law and decide based on the evidence. The record did not show actual bias; thus, no prejudice.

3) Impact and Practical Implications

Miranda waivers:
- Prosecutors and law enforcement: The opinion underscores best practices—deliver warnings orally and in writing, confirm understanding line-by-line, and obtain a signed form. Prior encounters with Miranda can be probative of understanding.
- Defense counsel: Attacking “knowing and intelligent” waivers on cognitive grounds requires targeted expert evidence connecting deficits to comprehension of the specific Miranda rights. General deficits or speculative consequences are insufficient.
- Doctrinal stability: The State’s burden remains a preponderance. Attempts to raise it under the Kansas Constitution must be historically and doctrinally grounded.
Fair cross-section claims:
- New clarity: The Court’s articulation of three pathways—especially “systematic decimation”—aligns Kansas with influential federal formulations and gives litigants a clearer pleading and proof roadmap.
- Record-building is essential: A single venire snapshot without process data will not suffice. Litigants should obtain jury source lists, draw procedures, undeliverable rates, excusal patterns, and multi-year demographic comparisons.
Implicit bias instructions:
- No race-switching exercises: Kansas trial judges have a clear signal that such instructions (including videos urging jurors to “imagine” different race/gender) are legally inappropriate because they invite non-record hypotheticals.
- Use voir dire: The approved vehicle to address implicit bias remains careful, case-specific questioning of prospective jurors. Counsel should plan comprehensive bias questioning and, where appropriate, request tailored, legally appropriate instructions that do not invite hypotheticals.
For-cause challenges:
- Preservation and prejudice: Counsel must be prepared to show that a seated juror was actually biased to obtain reversal. Simply losing a peremptory strike due to a denied for-cause challenge is insufficient without demonstrating bias on the panel that tried the case.

Complex Concepts Simplified

Miranda rights and waiver: Before custodial interrogation, police must inform a suspect of the right to remain silent and the right to counsel. A waiver is valid if the suspect understands those rights and chooses to speak. The State must prove this by “preponderance of the evidence” (more likely than not).
Knowing and intelligent: The suspect must comprehend the nature of the rights and that statements can be used in court—not every possible consequence or every topic police might raise.
Totality of the circumstances: Courts consider multiple factors (mental condition, interrogation manner/duration, outside communication ability, age/intellect/background, officer fairness, English proficiency) to decide whether a waiver was valid.
Fair cross-section right: Juries must be drawn from pools that fairly represent the community. To prove a violation, defendants must show both underrepresentation of a distinctive group and that it stems from systemic features of the selection process—not just one panel’s composition.
Systematic exclusion: Can be shown by (a) total exclusion, (b) substantial underrepresentation over time, or (c) “systematic decimation” across selection stages creating opportunities for discrimination. This generally requires data and process evidence, not speculation.
Implicit bias and “race-switching”: Asking jurors to imagine how they’d decide if a person’s race were different invites consideration of non-evidence hypotheticals. Kansas deems that improper. Bias is better addressed via targeted, real-world questions in voir dire.
For-cause vs. peremptory strikes: A for-cause strike removes a juror who cannot be impartial. A peremptory strike removes a juror without stating a reason (subject to Batson constraints). If a court denies a for-cause strike but the party uses a peremptory to remove the juror, reversal generally requires proof that a biased juror actually sat.

Conclusion

State v. McNeal is a comprehensive reaffirmation and clarification of Kansas criminal procedure across three fronts. First, it cements the practical, federally aligned approach to Miranda waivers: the State’s preponderance burden, the totality test, and a low threshold focused on core comprehension of rights, not omniscience about consequences. Second, it gives sharper contours to fair-cross-section challenges by identifying three recognized routes to prove “systematic exclusion,” implicitly cautioning litigants that data-driven, longitudinal, and process-based records are indispensable. Third, it solidifies Kansas’s skepticism toward implicit-bias “race-switching” instructions—whether written or via courtroom videos—on the sound evidentiary principle that jurors must not be invited to consider facts outside the record. Finally, it reiterates the prejudice requirement for for-cause error: without a showing that a biased juror served, the use of a peremptory to remove the disputed juror will not warrant reversal.

The decision’s practical message is clear. For law enforcement and prosecutors: use robust Miranda procedures and preserve evidence of the suspect’s comprehension. For defense counsel: marshal targeted expert testimony tying cognitive deficits to Miranda comprehension, construct comprehensive records for jury-representativeness challenges, and probe bias deeply in voir dire. For trial judges: rely on voir dire—not race-switching instructions—to address bias, and insist on well-developed records before entertaining cross-section claims. In doing so, McNeal harmonizes Kansas practice with established federal doctrine while providing clearer guidance for future litigation.