Printable Format22-3415. Laws applicable to witnesses; immunity from prosecution or punishment. (a) The provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of the parties, shall extend to criminal cases so far as they are in their nature applicable, unless other provision is made by statute.
(b) The county or district attorney or the attorney general may at any time, on behalf of the state, grant in writing to any person:
(1) Transactional immunity. Any person granted transactional immunity shall not be prosecuted for any crime which has been committed for which such immunity is granted or for any other transactions arising out of the same incident.
(2) Use and derivative immunity. Any person granted use and derivative use immunity may be prosecuted for any crime, but the state shall not use any testimony against such person provided under a grant of such immunity or any evidence derived from such testimony. Any defendant may file with the court a motion to suppress in writing to prevent the state from using evidence on the grounds that the evidence was derived from and obtained against the defendant as a result of testimony or statements made under such grant of immunity. The motion shall state facts supporting the allegations. Upon a hearing on such motion, the state shall have the burden to prove by clear and convincing evidence that the evidence was obtained independently and from a collateral source.
(c) Any person granted immunity under either or both of subsection (b)(1) or (2) may not refuse to testify on grounds that such testimony may self incriminate unless such testimony may form the basis for a violation of federal law for which immunity under federal law has not been conferred. No person shall be compelled to testify in any proceeding where the person is a defendant.
(d) No immunity shall be granted for perjury as provided in K.S.A. 21-5903, and amendments thereto, which was committed in giving such evidence.
History: L. 1970, ch. 129, § 22-3415; L. 1972, ch. 122, § 1; L. 1999, ch. 56, § 3; L. 2011, ch. 30, § 128; July 1.
Source or Prior Law:
62-1413.
Law Review and Bar Journal References:
Survey of criminal law, Dan Walter and Dick Ring, 15 W.L.J. 341, 349 (1976).
"Administrative Law: Prosecutor's Refusal to Grant Immunity to Defense Witness Remains Unreviewable," Gary E. Knight, 19 W.L.J. 144, 146 (1979).
Criminal Procedure Survey, 55 K.L.R. 797 (2007).
Attorney General's Opinions:
Grant of immunity by county or district attorney. 86-175.
CASE ANNOTATIONS
1. Special questions may not be submitted to jury in criminal prosecution. State v. Osburn, 211 Kan. 248, 255, 505 P.2d 742.
2. Cited in appeal on question reserved; functions of court and jury discussed in disapproving patterned jury instruction. State v. McClanahan, 212 Kan. 208, 211, 510 P.2d 153.
3. Immunity extends to federal prosecution as well as state; witness granted immunity not entitled to refuse to answer questions on the basis of constitutional privilege against self-incrimination. In re Birdsong, 216 Kan. 297, 532 P.2d 1301.
4. Construed as conferring power on attorney general and district and county attorneys to grant immunity for testimony before an administrative agency. Governmental Ethics Commission v. Cahill, 225 Kan. 772, 775, 776, 777, 594 P.2d 1103.
5. State cannot grant immunity to witness at subsequent hearing when doing so would result in perjured testimony at earlier hearing. State v. Bryant, 228 Kan. 239, 247, 613 P.2d 1348.
6. Statute only limits power to grant immunity for perjury while testifying under immunity grant; immunity may be granted for perjury committed at other times. State v. Brewer, 11 Kan. App. 2d 655, 657, 658, 659, 732 P.2d 780 (1987).
7. Immunity of prior unprotected inquisition perjury not precluded by statute. State v. Cathey, 241 K.715, 726, 727, 741 P.2d 738 (1987).
8. Direct orders compelling defendant testimony must reference to both use and derivative use immunity to satisfy 5th amendment requirements. State v. Delacruz, 307 Kan. 523, 535, 411 P.3d 1207 (2018).