Session of 1998
                   
HOUSE BILL No. 2819
         
By Committee on Judiciary
         
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            9             AN ACT concerning criminal procedure; relating to grants of immunity;
10             amending K.S.A. 22-3008, 22-3102 and 22-3415 and repealing the ex-
11             isting sections.
12            
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. K.S.A. 22-3008 is hereby amended to read as follows:
15       22-3008. (1) Whenever required by any grand jury, its presiding juror or
16       the prosecuting attorney, the clerk of the court in which the jury is im-
17       paneled shall issue subpoenas and other process to bring witnesses to
18       testify before the grand jury.
19           (2) If any witness duly summoned to appear and testify before a grand
20       jury fails or refuses to obey, compulsory process shall be issued to enforce
21       the witness' attendance, and the court may punish the delinquent in the
22       same manner and upon the same proceedings as provided by law for
23       disobedience of a subpoena issued out of the court in other cases.
24           (3) If any witness appearing before a grand jury refuses to testify or
25       to answer any questions asked in the course of the witness' examination,
26       the fact shall be communicated to a district judge of the judicial district
27       in writing, on which the question refused to be answered shall be stated.
28       The judge shall then determine whether the witness is bound to answer
29       or not, and the grand jury shall be immediately informed of the decision.
30           (4) No witness before a grand jury shall be required to incriminate
31       the witness' self. The district judge may, if the judge determines that the
32       interest of justice requires, grant any witness before the grand jury im-
33       munity from prosecution or punishment on account of any matter con-
34       cerning which the witness shall be compelled to testify. Prior to the grant
35       of immunity, notice shall be given to the prosecuting attorney whose
36       recommendations on the matter of the grant of immunity shall be heard
37       by the judge before the grant of immunity is made.
38           (a) The county or district attorney, or the attorney general, may at
39       any time, on behalf of the state, grant in writing to any person:
40           (i) Transactional immunity. Any person granted transactional im-
41       munity shall not be prosecuted for any crime which has been committed
42       for which such immunity is granted or for any other transactions arising
43       out of the same incident.

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  1           (ii) Use and derivative immunity. Any person granted use and deriv-
  2       ative use immunity may be prosecuted for any crime, but the state shall
  3       not use any testimony against such person provided under a grant of such
  4       immunity or any evidence derived therefrom. Any defendant may file with
  5       the court a motion to suppress in writing to prevent the state from using
  6       evidence on the grounds that the evidence was derived from and obtained
  7       against the defendant as result of testimony or statements made under
  8       such grant of immunity. The motion shall state facts supporting the alle-
  9       gations. Upon a hearing on such motion, the state shall have the burden
10       to prove by clear and convincing evidence that the evidence was obtained
11       independently and from a collateral source.
12           (b) Any person granted immunity under either or both of the above
13       paragraphs may not refuse to testify on grounds that such testimony may
14       self incriminate unless such testimony may form basis for a violation of
15       federal law for which immunity under federal law has not been conferred.
16       No defendant shall be compelled to testify in any proceeding where the
17       defendant is a defendant.
18           (c) No immunity shall be granted for perjury or false statement or for
19       any other crime committed in giving such evidence.
20           (5) If the judge determines that the witness must answer and if the
21       witness persists in refusing to answer, the witness shall be brought before
22       the judge, who shall proceed in the same manner as if the witness had
23       been interrogated and had refused to answer in open court.
24           Sec. 2. K.S.A. 22-3102 is hereby amended to read as follows: 22-
25       3102. (a) No person called as a witness at an inquisition shall be required
26       to make any statement which will incriminate him such person. The at-
27       torney general, assistant attorney general or county attorney may, on be-
28       half of the state, grant any person called as a witness at an inquisition
29       immunity from prosecution or punishment on account of any transaction
30       or matter about which such person shall be compelled to testify and such
31       testimony shall not be used against such person in any prosecution for a
32       crime under the laws of Kansas or any municipal ordinance. After being
33       granted immunity from prosecution or punishment, as herein provided,
34       no person shall be excused from testifying on the ground that his testi-
35       mony may incriminate him.
36           (b) The county or district attorney, or the attorney general, may at
37       any time, on behalf of the state, grant in writing to any person:
38           (1) Transactional immunity. Any person granted transactional im-
39       munity shall not be prosecuted for any crime which has been committed
40       for which such immunity is granted or for any other transactions arising
41       out of the same incident.
42           (2) Use and derivative immunity. Any person granted use and deriv-
43       ative use immunity may be prosecuted for any crime, but the state shall

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  1       not use any testimony against such person provided under a grant of such
  2       immunity or any evidence derived therefrom. Any defendant may file with
  3       the court a motion to suppress in writing to prevent the state from using
  4       evidence on the grounds that the evidence was derived from and obtained
  5       against the defendant as result of testimony or statements made under
  6       such grant of immunity. The motion shall state facts supporting the alle-
  7       gations. Upon a hearing on such motion, the state shall have the burden
  8       to prove by clear and convincing evidence that the evidence was obtained
  9       independently and from a collateral source.
10           (c) Any person granted immunity under either or both of the above
11       paragraphs may not refuse to testify on grounds that such testimony may
12       self incriminate unless such testimony may form basis for a violation of
13       federal law for which immunity under federal law has not been conferred.
14       No defendant shall be compelled to testify in any proceeding where the
15       defendant is a defendant.
16           (d) No immunity shall be granted for perjury or false statement or
17       for any other crime committed in giving such evidence.
18           Sec. 3. K.S.A. 22-3415 is hereby amended to read as follows: 22-
19       3415. (a) The provisions of law in civil cases relative to compelling the
20       attendance and testimony of witnesses, their examination, the adminis-
21       tration of oaths and affirmations, and proceedings as for contempt, to
22       enforce the remedies and protect the rights of the parties, shall extend
23       to criminal cases so far as they are in their nature applicable, unless other
24       provision is made by statute.
25           (b) The county or district attorney or the attorney general may at any
26       time, on behalf of the state, grant in writing to any person ;mmunity from
27       prosecution or punishment on account of any transaction or matter con-
28       tained in any statement or about which such person shall be compelled
29       to testify and such statement or testimony shall not be used against such
30       person in any prosecution for a crime under the laws of Kansas or any
31       municipal ordinance. After being granted immunity from prosecution or
32       punishment, as herein provided, no person shall be excused from testi-
33       fying on the ground that his testimony may incriminate him unless such
34       testimony is a violation of federal law. He shall not be granted immunity
35       from prosecution for perjury or false statement or any other crime com-
36       mitted in giving such evidence.
37           (1) Transactional immunity. Any person granted transactional im-
38       munity shall not be prosecuted for any crime which has been committed
39       for which such immunity is granted or for any other transactions arising
40       out of the same incident.
41           (2) Use and derivative immunity. Any person granted use and deriv-
42       ative use immunity may be prosecuted for any crime, but the state shall
43       not use any testimony against such person provided under a grant of such

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  1       immunity or any evidence derived therefrom. Any defendant may file with
  2       the court a motion to suppress in writing to prevent the state from using
  3       evidence on the grounds that the evidence was derived from and obtained
  4       against the defendant as result of testimony or statements made under
  5       such grant of immunity. The motion shall state facts supporting the alle-
  6       gations. Upon a hearing on such motion, the state shall have the burden
  7       to prove by clear and convincing evidence that the evidence was obtained
  8       independently and from a collateral source.
  9           (c) Any person granted immunity under either or both of the above
10       paragraphs may not refuse to testify on grounds that such testimony may
11       self incriminate unless such testimony may form basis for a violation of
12       federal law for which immunity under federal law has not been conferred.
13       No defendant shall be compelled to testify in any proceeding where the
14       defendant is a defendant.
15           (d) No immunity shall be granted for perjury or false statement or
16       for any other crime committed in giving such evidence.
17           Sec. 4. K.S.A. 22-3008, 22-3102 and 22-3415 are hereby repealed.
18           Sec. 5. This act shall take effect and be in force from and after its
19       publication in the statute book.
20      
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