60-439.
Reference to exercise of privilege; presumption and adverse inference not permitted.
If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.
History:
L. 1963, ch. 303, 60-439; L. 1967, ch. 323, § 1; July 1.
Notes of Decisions
Cited in
24
cases (
1 in the last 5 years), 1977–2021 · leading case:
State v. Nott, 669 P.2d 660 (Kan. 1983).
State v. Nott, 669 P.2d 660 (Kan. 1983).
· cites it 8× “Before turning to the issue of whether Nott's exercise of the Fifth Amendment privilege against self-incrimination in the Whitaker-Kirk trial could properly be used to impeach the credibility of his alibi testimony at his own trial on the basis it is a prior inconsistent…”
State v. Searles, 793 P.2d 724 (Kan. 1990).
· cites it 6× “Searles contends that by informing the arresting officers that he would not answer that question, Searles, in addition to asserting a constitutional right, was exercising a statutory privilege "to refuse to disclose in an action or to a public official .”
State v. Carter, 57 P.3d 825 (Kan. Ct. App. 2002).
· cites it 6× “60-425 and K.S.A. 60-439. Carter does not provide any analysis or authority supporting this argument.”
State Ex Rel. Stovall v. Meneley, 22 P.3d 124 (Kan. 2001).
“The Fifth Amendment prohibits adverse inference to be drawn from execution of the privilege in the criminal prosecution.”
State v. Henderson, 603 P.2d 613 (Kan. 1979).
· cites it 2× “Kansas has codified the Griffin rule in K.S.A. 60-439, which prohibits comment by counsel and the court upon a defendant's privileged failure to testify.”
State v. Ninci, 936 P.2d 1364 (Kan. 1997).
“60-439: “If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no…”
State v. Smith, 993 P.2d 1213 (Kan. 1999).
“The prohibition is codified in Kansas in K.S.A. 60-439, which provides: “If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing…”
State v. Martinez, 468 P.3d 319 (Kan. 2020).
“2d 1364 (1997); see K.S.A. 60-439. Further, a prosecutor cannot elicit 5 testimony from a detective that a defendant invoked the right to remain silent during a police interview.”
State v. Davis, 874 P.2d 1156 (Kan. 1994).
· cites it 2× “” Kansas codified the Griffin rule in K.S.A. 60-439: “If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the…”
State v. Johnson-Howell, 881 P.2d 1288 (Kan. 1994).
“In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may…”
State v. Lowe, 715 P.2d 404 (Kan. 1986).
“After being fully advised of his rights under Miranda, appellant chose to discuss the alleged crime with the officer and freely did so.”
State v. Beebe, 766 P.2d 158 (Kan. 1988).
“In determining that a federal constitutional error constitutes harmless error, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.”
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