Fifth Amendment privilege in Kansas

2023We have unlimited review in determining whether an individual can claim a Fifth Amendment privilege against self-incrimination. 311 Kan. at 706.

2023We have unlimited review in determining whether an individual can claim a Fifth Amendment privilege against self-incrimination. 311 Kan. at 706.

2025G.O., 318 Kan. at 397 ("The Fifth Amendment test for voluntariness substantially tracks the voluntariness test applied under the Due Process Clause of the Fourteenth Amendment.") (citing Connelly, 479 U.S. at 169-70 ).

2025G.O., 318 Kan. at 397 ("The Fifth Amendment test for voluntariness substantially tracks the voluntariness test applied under the Due Process Clause of the Fourteenth Amendment.") (citing Connelly, 479 U.S. at 169-70 ).

2022In Longobardi, 243 Kan. at 408 , the specific question before our Supreme Court was "[a]t what point does a defendant's Fifth Amendment privilege against self-incrimination end after his plea of guilty has been accepted?" 243 Kan. at 408-09 .

2022In Longobardi, 243 Kan. at 408 , the specific question before our Supreme Court was "[a]t what point does a defendant's Fifth Amendment privilege against self-incrimination end after his plea of guilty has been accepted?" 243 Kan. at 408-09 .

2012The Court determined that under the “distinct circumstances” of the case, the Fifth Amendment privilege applied to the examination. 451 U.S. at 466 .

2012The Court determined that under the “distinct circumstances” of the case, the Fifth Amendment privilege applied to the examination. 451 U.S. at 466 .

2025This immunity protects against the use of compelled testimony, as well as evidence derived directly or indirectly from it, "in all prosecutions for offenses committed prior to the grant of immunity that would have permitted the witness to invoke his [or her] Fifth Amendment privilege absent the grant." Apfelbaum, 445 U.S. at 128 ; Kastigar, 406 U.S. at 453 ; State v. Delacruz, 307 Kan. 523 , 534, 411 P.3d 1207 (2018).

2025This immunity protects against the use of compelled testimony, as well as evidence derived directly or indirectly from it, "in all prosecutions for offenses committed prior to the grant of immunity that would have permitted the witness to invoke his [or her] Fifth Amendment privilege absent the grant." Apfelbaum, 445 U.S. at 128 ; Kastigar, 406 U.S. at 453 ; State v. Delacruz, 307 Kan. 523 , 534, 411 P.3d 1207 (2018).

2025Whether and to what extent Lang had a Fifth Amendment privilege not to testify at Adams' trial "The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence." Kastigar v. United States, 406 U.S. 441, 443 , 92 S. Ct. 1653 , 32 L. Ed. 2d 212 (1972).

2025Whether and to what extent Lang had a Fifth Amendment privilege not to testify at Adams' trial "The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence." Kastigar v. United States, 406 U.S. 441, 443 , 92 S. Ct. 1653 , 32 L. Ed. 2d 212 (1972).

2024State v. Smith: Extension of the Fifth Amendment privilege postsentence In his petition, Hutto focused exclusively on Smith, which was decided in the same year as Mitchell and appeared to extend the Kansas privilege rule "until there is a final judgment in a case and a right to appeal has expired." 268 Kan. at 235 (citing State v. Aldape, 14 Kan. App. 2d 521, 526 , 794 P.2d 672 [1990]).

2024State v. Smith: Extension of the Fifth Amendment privilege postsentence In his petition, Hutto focused exclusively on Smith, which was decided in the same year as Mitchell and appeared to extend the Kansas privilege rule "until there is a final judgment in a case and a right to appeal has expired." 268 Kan. at 235 (citing State v. Aldape, 14 Kan. App. 2d 521, 526 , 794 P.2d 672 [1990]).

2024State v. Smith: Extension of the Fifth Amendment privilege postsentence In his petition, Hutto focused exclusively on Smith, which was decided in the same year as Mitchell and appeared to extend the Kansas privilege rule "until there is a final judgment in a case and a right to appeal has expired." 268 Kan. at 235 (citing State v. Aldape, 14 Kan. App. 2d 521, 526 , 794 P.2d 672 [1990]).

2024State v. Smith: Extension of the Fifth Amendment privilege postsentence In his petition, Hutto focused exclusively on Smith, which was decided in the same year as Mitchell and appeared to extend the Kansas privilege rule "until there is a final judgment in a case and a right to appeal has expired." 268 Kan. at 235 (citing State v. Aldape, 14 Kan. App. 2d 521, 526 , 794 P.2d 672 [1990]).

2025G.O., 318 Kan. at 397 ("The Fifth Amendment test for voluntariness substantially tracks the voluntariness test applied under the Due Process Clause of the Fourteenth Amendment.") (citing Connelly, 479 U.S. at 169-70 ).

2025G.O., 318 Kan. at 397 ("The Fifth Amendment test for voluntariness substantially tracks the voluntariness test applied under the Due Process Clause of the Fourteenth Amendment.") (citing Connelly, 479 U.S. at 169-70 ).

2025As our Supreme Court explained in State v. Morton, 286 Kan. 632, 639 , 186 P.3d 785 (2008), "the Miranda rule was designed to safeguard the Fifth Amendment privilege against self-incrimination by reducing the risk of a coerced confession: "'The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. "[T]o reduce the risk of a coerced confession and to implement the Self–Incrimination Clause", the United States Supreme Court in Miranda v. Arizona

2025As our Supreme Court explained in State v. Morton, 286 Kan. 632, 639 , 186 P.3d 785 (2008), "the Miranda rule was designed to safeguard the Fifth Amendment privilege against self-incrimination by reducing the risk of a coerced confession: "'The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. "[T]o reduce the risk of a coerced confession and to implement the Self–Incrimination Clause", the United States Supreme Court in Miranda v. Arizona

2024And we know of no case in which the State has tried to revoke probation because a probationer refused to make nonimmunized disclosures about his own criminal conduct. "[United States Supreme Court] decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege." Murphy, 465 U.S. at 438 .

2024And we know of no case in which the State has tried to revoke probation because a probationer refused to make nonimmunized disclosures about his own criminal conduct. "[United States Supreme Court] decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege." Murphy, 465 U.S. at 438 .

2024Kansas Anderson-Longobardi bright-line rule Within Kansas caselaw, State v. Anderson, 240 Kan. 695 , 732 P.2d 732 (1987), is the starting point for the scope of a witness' Fifth Amendment privilege after pleading guilty.

2024Kansas Anderson-Longobardi bright-line rule Within Kansas caselaw, State v. Anderson, 240 Kan. 695 , 732 P.2d 732 (1987), is the starting point for the scope of a witness' Fifth Amendment privilege after pleading guilty.

2024Compare Delacruz, 307 Kan. at 533-35 (reversing contempt order of convicted witness who refused to testify at codefendant's trial because he was appealing his state conviction and the State's grant of immunity did not protect him from federal prosecution), with Bailey, 292 Kan. at 461-63 (finding a witness who pled guilty and had been sentenced, but was appealing his conviction, no longer had a Fifth Amendment privilege when called to testify at codefendant's trial).

2024Compare Delacruz, 307 Kan. at 533-35 (reversing contempt order of convicted witness who refused to testify at codefendant's trial because he was appealing his state conviction and the State's grant of immunity did not protect him from federal prosecution), with Bailey, 292 Kan. at 461-63 (finding a witness who pled guilty and had been sentenced, but was appealing his conviction, no longer had a Fifth Amendment privilege when called to testify at codefendant's trial).

2018Cabral cited to this court's prior decision in State v. Durrant , 244 Kan. 522 , 534, 769 P.2d 1174 (1989), which held: "For a statutory grant of immunity to be coextensive with the privilege against self-incrimination, it must grant not only use immunity, or protection from the direct use of compelled incriminatory information, but also derivative-use immunity, which prohibits use of any such information for investigatory purposes leading to other evidence of criminal activity." Durrant was consistent with the landmark case of Kastigar , which, as noted above, held *1216 that if the governmen

2018Cabral cited to this court's prior decision in State v. Durrant , 244 Kan. 522 , 534, 769 P.2d 1174 (1989), which held: "For a statutory grant of immunity to be coextensive with the privilege against self-incrimination, it must grant not only use immunity, or protection from the direct use of compelled incriminatory information, but also derivative-use immunity, which prohibits use of any such information for investigatory purposes leading to other evidence of criminal activity." Durrant was consistent with the landmark case of Kastigar , which, as noted above, held *1216 that if the governmen

2016See State v. King, 221 Kan. 69, 71-72 , 557 P.2d 1262 (1976) (defense sought to admit recording of conversation between witness and defendant; we held defendant was not, at that point, “available” for cross-examination because she was still protected by her Fifth Amendment privilege; when defendant later took the stand, court did not abuse discretion in refusing to admit the self-serving tape because defendant’s in-court testimony was best evidence); State v. Oliphant, 210 Kan. 451, 453 , 502 P.2d 626 (1972) (witnesses who had claimed privilege against self-incrimination in previous proceeding

2016See State v. King, 221 Kan. 69, 71-72 , 557 P.2d 1262 (1976) (defense sought to admit recording of conversation between witness and defendant; we held defendant was not, at that point, “available” for cross-examination because she was still protected by her Fifth Amendment privilege; when defendant later took the stand, court did not abuse discretion in refusing to admit the self-serving tape because defendant’s in-court testimony was best evidence); State v. Oliphant, 210 Kan. 451, 453 , 502 P.2d 626 (1972) (witnesses who had claimed privilege against self-incrimination in previous proceeding

1983It means, as we said in Griffin v. California, 380 U.S. 609 [, 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly.’ . . .

1983It means, as we said in Griffin v. California, 380 U.S. 609 [, 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly.’ . . .

2026Therefore, at the third step, this court reviews this issue de novo. 300 Kan. at 509 (determination of whether admission of evidence violates constitutional rights reviewed de novo); see State v. Contreras, 313 Kan. 996 , 999, 492 P.3d 1180 (2021) (When reviewing challenges to evidentiary rulings based on a claimed Fifth Amendment violation, an appellate court reviews the district court's factual findings using a substantial competent evidence standard, but any legal conclusions are subject to unlimited review.).

2026Therefore, at the third step, this court reviews this issue de novo. 300 Kan. at 509 (determination of whether admission of evidence violates constitutional rights reviewed de novo); see State v. Contreras, 313 Kan. 996 , 999, 492 P.3d 1180 (2021) (When reviewing challenges to evidentiary rulings based on a claimed Fifth Amendment violation, an appellate court reviews the district court's factual findings using a substantial competent evidence standard, but any legal conclusions are subject to unlimited review.).

2025In support, she cited United States Supreme Court authority addressing the extent of the Fifth Amendment privilege in the context of the federal immunity statute. 64 Kan. App. 2d at 159 (Arnold-Burger, C.J., dissenting) (citing United States v. Apfelbaum, 445 U.S. 115 , 100 S. Ct. 948 , 63 L. Ed. 2d 250 [1980] [holding that immunized testimony cannot be used in a criminal trial for offenses committed before the grant of immunity, but statutory exceptions allowing prosecutions for perjury committed during immunized testimony are constitutional]).

2025In support, she cited United States Supreme Court authority addressing the extent of the Fifth Amendment privilege in the context of the federal immunity statute. 64 Kan. App. 2d at 159 (Arnold-Burger, C.J., dissenting) (citing United States v. Apfelbaum, 445 U.S. 115 , 100 S. Ct. 948 , 63 L. Ed. 2d 250 [1980] [holding that immunized testimony cannot be used in a criminal trial for offenses committed before the grant of immunity, but statutory exceptions allowing prosecutions for perjury committed during immunized testimony are constitutional]).

2024In Rock v. Arkansas, the United States Supreme Court found this right is guaranteed by the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment, and necessarily implied by the Fifth Amendment privilege against self-incrimination. 483 U.S. at 51-53 .

2024In Rock v. Arkansas, the United States Supreme Court found this right is guaranteed by the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment, and necessarily implied by the Fifth Amendment privilege against self-incrimination. 483 U.S. at 51-53 .

2024Since the risk of incrimination extends beyond conviction (the guilt-phase of criminal proceedings), the Court held the Fifth Amendment privilege must be available past this point at least through sentencing. 526 U.S. at 326 .

2024Since the risk of incrimination extends beyond conviction (the guilt-phase of criminal proceedings), the Court held the Fifth Amendment privilege must be available past this point at least through sentencing. 526 U.S. at 326 .