State v. Wash: Strict Limits on Prosecutorial Argument—Violations of Orders in Limine and “We Know” Statements Are Error; Timely Objection Required for Evidentiary-Based Missteps

Introduction

In State v. Wash, the Supreme Court of Kansas reversed a capital murder conviction arising from the shooting deaths of Ashley Harlan and her 21-week-old unborn child. The State’s case was circumstantial—anchored to a rented U-Haul truck, mileage anomalies, and constrained firearm-toolmark testimony—and the prosecutor sought to bridge gaps by repeatedly referencing ballistics “matches” that the trial court had excluded and by telling jurors “we know” disputed facts. The Court held these were prosecutorial errors that were not harmless under the Chapman standard. Along the way, the Court clarified several important rules in Kansas criminal practice:

Prosecutors violate an order in limine by discussing excluded subject matter before the jury—even indirectly or through lay witnesses.
Although contemporaneous objections are generally not required to preserve prosecutorial error, K.S.A. 60-404 requires a timely and specific objection when the complaint effectively concerns an evidentiary question (a question asked or an answer given).
“We know” statements in closing are improper when they convert disputed inferences into “facts,” even if the inference is reasonable; they are permissible only when addressing uncontroverted evidence.
Prejudice from prosecutorial error is assessed under Chapman; the State must show no reasonable possibility the error contributed to the verdict.
Miranda safeguards apply only to custodial interrogation; on this record the defendant’s stationhouse interview was noncustodial and his statements were admissible.
“Not-me-but-him” third-party culpability evidence must link the third party to the crime; generalized fear or remote history without linkage has little probative value and may be excluded.

The Court reversed and remanded for a new trial. A concurrence agreed on reversal for prejudice but cautioned against rhetorical overreach in characterizing prosecutorial motives and the harmless-error burden.

Summary of the Opinion

Result: Conviction reversed; case remanded for further proceedings.
Core prosecutorial errors:
- Repeated violations of an order in limine prohibiting “same gun/match” firearm-toolmark opinions, including stating as fact that casings had “the same markings,” urging jurors that they “don’t have to be a scientist” to conclude the same gun fired the rounds, and editorializing about the court’s evidentiary rulings.
- Improper “we know” assertions during closing, converting disputed inferences into “facts” on key points (who killed Harlan; what Wash did on crucial dates; whether he “can lie”; whether the New Year’s Eve video showed a “test-fire”; Patillo’s whereabouts; certainty about excluding other guns; and qualitative vouching for police work).
Preservation ruling: The defense’s delayed objection to the grandmother questioning was not contemporaneous under K.S.A. 60-404, so that instance was not a ground for reversal. The remaining instances were preserved and erroneous.
Harmlessness: Applying Chapman, the State failed to show no reasonable possibility the errors contributed to the verdict, especially given meaningful evidentiary gaps and the State’s reliance on the errors to close them.
Other issues likely to recur:
- Miranda/voluntariness: The police-station interview was noncustodial; statements were properly admitted.
- Third-party culpability/hearsay: Exclusion of Harlan’s 2014 statements about fear of Theis was within discretion; they were too remote and lacked linkage to the 2018 crime.

Analysis

Precedents Cited and How They Shaped the Decision

Orders in limine and indirect violations: State v. Gleason (277 Kan. 624) and State v. Crume (271 Kan. 87) establish that orders in limine protect against prejudicial exposure before the jury, and indirect elicitation can violate them. The Court applied this to hold the prosecutor erred by stating “same markings” and arguing “same gun,” despite a ruling that only “similarities” could be discussed.
Preservation via K.S.A. 60-404: State v. Slusser (317 Kan. 174), State v. Huggins (319 Kan. 358), State v. Scheetz (318 Kan. 48), and State v. Ballou (310 Kan. 591) clarify that when the prosecutorial error is essentially evidentiary (a question/answer), a timely and specific objection is required; the Court refused to treat the delayed objection during the grandmother’s testimony as preserved.
“We know” statements and prosecutorial opinion: State v. Alfaro-Valleda (314 Kan. 526), State v. King (308 Kan. 16), and State v. Corbett (281 Kan. 294) prohibit prosecutors from expressing personal opinions or converting contested inferences into facts via “we know,” even when inferences are reasonable. Several of the Wash closing statements violated this rule.
Editorializing about court rulings: State v. Louis (305 Kan. 453) condemns arguing around the judge’s evidentiary rulings in front of jurors. The Wash prosecutor compounded error by commenting on defense objections and the court’s admonitions.
Vouching for police and investigation: State v. Waldschmidt (318 Kan. 633) warns against qualitative bolstering of law enforcement. Some Wash comments crossed this line; others permissibly summarized record facts (e.g., scope and duration of investigation).
Harmless-error standard: Chapman v. California and Kansas cases like State v. Chandler (307 Kan. 657) and State v. McBride (307 Kan. 60) require the State to prove beyond a reasonable doubt that no reasonable possibility the errors affected the verdict. Given the gaps in the circumstantial case, that burden was not met.
Expert vs. lay opinion: K.S.A. 60-456 forbids lay testimony based on scientific or technical knowledge. The prosecutor’s questions asked a lay witness (and the defendant) to adopt a technical “same markings” proposition the expert was forbidden to express—another reason the line was crossed.
Miranda custody analysis: Miranda v. Arizona and Kansas cases including State v. Guein (309 Kan. 1245), State v. Hillard (315 Kan. 732), and State v. Vonachen (312 Kan. 451) provide an eight-factor totality test. Applying uncontested facts found by the district court (front-seat transport, unlocked room, access to phone, repeated offers of breaks, not restrained, allowed to leave post-interview), the interview was noncustodial; statements were admissible.
Third-party culpability: State v. Burnett (300 Kan. 419) requires linkage beyond suspicion; without evidence of opportunity, presence, or means, “not-me-but-him” theories have little probative value. Harlan’s 2014 fears of Theis were remote and unlinked to the 2018 homicide; exclusion was within discretion.

Legal Reasoning

The district court’s Daubert-informed limitations on toolmark testimony allowed description of “similar characteristics” but barred “match,” “same gun,” opinions of signature individualization, or any quantified certainty. The prosecutor’s trial conduct—framing “same markings” as established fact in questioning and urging jurors to conclude the same gun was used—“defied the order” because it placed excluded content before the jury indirectly (through lay questioning) and directly (in argument). The Court emphasized that K.S.A. 60-243(c) prohibits discussing inadmissible evidence in front of the jury and that K.S.A. 60-456 blocks lay witnesses from offering the technical opinions the expert could not give.

On closing argument boundaries, the Court meticulously parsed multiple “we know” statements:

Improper: “We know” Wash killed Harlan; “we know” exactly what he did on the 29th–30th from surveillance; “we know” he “can lie”; “we know” the NYE video was a “test-fire”; “we know” Patillo was in Spring Hill (his phone was); “we know” certain guns were excluded with certainty; “we know” via “great work” of police what happened.
Permissible context-specific uses: premeditation inference from timing of shots and post-shooting conduct; DNA remarks describing uncontested exclusion/inclusion statistics; summarizing investigation scope and timeline.

After identifying errors, the Court applied Chapman prejudice analysis. The case was not overwhelming:

The U-Haul evidence rested on indistinct, reflective images and could not place Wash at the scene; significant route gaps remained.
The State never recovered a firearm; the ballistics analysis was necessarily constrained and subjective.
Phone activity indicated Harlan called Wash minutes before the estimated time of death while his phone was in Kansas City, Kansas.
Unknown DNA was present; there was no evidence of struggle injuries on Wash; and he arrived with his young daughter to stay the night.
Defense evidence supported an alibi, including grandmother testimony and security camera assertions.

Against this backdrop, the prosecutor’s errors sought to close critical evidentiary gaps, risking that jurors would treat advocacy as “unsworn, unchecked” proof. The State did not carry its burden to show no reasonable possibility of contribution to the verdict.

The Court also addressed issues likely to recur. On Miranda, the district court made explicit findings aligned with Guein’s eight factors; those findings (which the defendant did not undermine on appeal with a sufficient record) supported the legal conclusion that the interview was noncustodial. On third-party culpability, under Burnett, Harlan’s remote 2014 fear statements about Theis lacked probative linkage to the 2018 murders given his limited mobility, lack of contact, and absence from her life since 2014. Exclusion was within discretion; the Court did not reach hearsay exceptions because relevance failed first.

Impact

State v. Wash is a forceful restatement—and refinement—of Kansas rules on prosecutorial conduct, preservation, and prejudice:

Orders in limine are enforceable walls, not speed bumps. Prosecutors cannot “work around” a limitation by:
- Embedding the excluded conclusion in questions to lay witnesses.
- Asserting the prohibited proposition as fact in closing.
- Commenting on defense objections or the court’s evidentiary rulings in front of the jury.
“We know” is a term of art in Kansas—and a tripwire. Unless the fact truly is uncontroverted, “we know” statements risk reversal. Even reasonable inferences must be framed as argument grounded in the record, not as facts.
Preservation matters under K.S.A. 60-404. When the alleged prosecutorial error is “evidentiary”—a question asked or answer given—a timely, specific objection is required. Defense counsel should object immediately, seek curative instructions, and, if warranted, move for mistrial to protect the record.
Harmless-error review remains exacting in close, circumstantial cases. When the evidence is not overwhelming, recurring argumentative missteps are unlikely to be brushed aside as “minor aberrations.” Wash will be frequently cited to resist harmlessness arguments in comparable records.
Firearm/toolmark testimony is constrained in Kansas trial courts. Following national critiques, Kansas trial courts can limit toolmark experts to explaining methodology and similarities without “match/same gun” certainty—particularly when the firearm is not recovered. Prosecutors must train experts and tailor presentations accordingly.
Closing argument training is essential. Wash, Alfaro-Valleda, King, Corbett, Lowery, and Louis collectively define a detailed map of “don’ts”: no personal opinions, no “we know” on disputed points, no editorializing about rulings, no qualitative vouching for police investigations, and no asking jurors to rely on their own “science” to supply excluded expert conclusions.
Miranda custody remains a fact-heavy, totality inquiry. Long, late-night stationhouse interviews are not automatically custodial, particularly when the person is unrestrained, retains their phone, takes breaks, and departs unarrested. Defense suppression practice must build a robust factual record.
Third-party culpability demands linkage. Burnett’s linkage requirement—presence, opportunity, or means—remains the gatekeeper. Remote fears or past abuse, without present connection to the charged crime, are likely to be excluded as minimally probative.
Judicial tone and the concurrence. The concurrence underscores that reversals for prosecutorial error remain the exception and urges restraint in characterizing motives or the harmless-error burden. Trial and appellate advocacy should take note of both the majority’s doctrinal clarifications and the concurrence’s admonitions on rhetoric.

Complex Concepts Simplified

Order in limine: A pretrial ruling that certain evidence or topics cannot be presented in front of the jury. Its purpose is to prevent jurors from hearing prejudicial material. Violating it—directly or indirectly—is error.
Prosecutorial error vs. misconduct: Kansas uses “prosecutorial error” to describe actions outside the wide latitude permitted to the State. Some cases use “misconduct” for more culpable conduct, but the key is whether the act denied a fair trial.
“We know” rule: A prosecutor may use “we know” only for truly uncontested facts. Using it for inferences (e.g., “we know he did X”) improperly suggests personal knowledge or certainty and is error, even if the inference is reasonable.
Chapman harmless-error test: After identifying error, the State must prove beyond a reasonable doubt that there is no reasonable possibility the error contributed to the verdict. This is applied to the entire record, not in isolation.
K.S.A. 60-404 contemporaneous objection: To challenge an evidentiary misstep on appeal (including an evidentiary-flavored prosecutorial error), defense counsel must object promptly and specifically at trial; late or nonspecific objections can forfeit the issue.
Expert vs. lay opinion (K.S.A. 60-456): Lay witnesses cannot give opinions based on scientific or technical knowledge. If the expert is limited to “similarities,” counsel cannot invite a lay witness to opine “same gun.”
Firearm/toolmark limitations: Courts may allow experts to describe observed similarities but bar “match” or “same gun” conclusions, especially without the firearm and in light of methodological concerns.
Miranda custody: “Custodial” means a reasonable person would not feel free to end the questioning. Courts weigh factors such as location, duration, restraint, number of officers, tone, transportation, status as witness/suspect, and what happened afterward.
Third-party culpability (“not me but him”): Suggesting someone else did it requires evidence tying that person to the crime (presence, opportunity, means). Without linkage, such evidence has little probative value and can be excluded.

Practical Guidance

For prosecutors:
- Train to avoid “we know” except for uncontroverted facts; use “the evidence shows” or “you may infer.”
- Honor orders in limine strictly; do not backdoor excluded conclusions through lay questioning or argument.
- Never comment on the court’s rulings or defense objections in front of the jury.
- Refrain from qualitative vouching for police; argue record facts.
- With toolmarks, set expectations: methodology, class/subclass/individual characteristics, similarities—no “match/same gun/certainty.”
For defense counsel:
- Object immediately and specifically under K.S.A. 60-404 to evidentiary-tinged missteps; request curative instructions; move for mistrial when appropriate.
- Preserve a full record at suppression hearings—secure explicit findings on each custody factor; ensure video timestamps and key excerpts are in the record.
- For third-party culpability, marshal linkage evidence (presence, opportunity, means) to bolster probative value.
For trial judges:
- Draft clear, specific in limine orders; restate and enforce them during trial.
- When violations occur, promptly admonish the jury and consider stronger remedies if patterns emerge.
- On Miranda, make detailed findings on each factor; invite proposed findings to avoid record gaps.

Conclusion

State v. Wash is a comprehensive blueprint for trial practice in Kansas on three recurring fronts: (1) the sanctity and scope of orders in limine, (2) the permissible bounds of closing argument—especially the “we know” rule, and (3) the preservation and prejudice framework governing prosecutorial error. It reinforces that when the State’s case is circumstantial and contested, prosecutors must not replace proof with rhetoric or substitute excluded expertise with lay inferences. The opinion also offers steady guidance on Miranda custody analysis and the probative threshold for third-party culpability evidence.

For future cases, Wash’s enduring lessons are straightforward: confine experts to what the science and the court allow; object contemporaneously to evidentiary missteps; argue evidence, not opinion; and remember that Chapman prejudice is evaluated against the whole record, where cumulative argumentative errors can loom large. The Court’s reversal ensures that verdicts rest on admissible proof tested by fair argument—not on excluded propositions or assertions of certainty about disputed facts.