HB 339 -- WITNESS IMMUNITY

This bill allows a court, upon written request by a prosecuting
attorney, to order a witness to testify or provide other
information which the witness refuses to give on the basis of
the Fifth Amendment privilege against self-incrimination.  Upon
complying with the order, the witness will be immune from
criminal prosecution for any act which is the subject matter of
the order.  The witness will not be immune to a prosecution for
perjury during the testimony given.  Further, the witness could
still face civil lawsuits or administrative action for the
event.  However, none of the witness's testimony, or any leads
from such testimony, may be used against the witness in such
actions.

A prosecutor may be granted such an order only upon the approval
of a verified application for witness immunity by a judge who is
not involved with any other part of the criminal proceedings.
The application for witness immunity must offer proof that the
individual is likely to claim the Fifth Amendment privilege and
the testimony is either:

(1) necessary to the investigation and otherwise unobtainable; or

(2) necessary for the prosecutor to prove a defendant's guilt
beyond a reasonable doubt.

A witness defying such a court order may be found in contempt of
court and committed to the county jail until he or she complies
with the order, or until the conclusion of the trial.  Such
commitment cannot exceed one year.

Any grand jury proceeding that hears immunized testimony must be
recorded.  If a person is indicted as a result of such immunized
testimony, the prosecutor must provide a transcription of the
immunized testimony to all defendants.

HB 339 -- WITNESS IMMUNITY (Kreider)

This bill allows a court, upon written request by a prosecuting
attorney, to order a witness to testify or provide other
information which the witness refuses to give on the basis of
the Fifth Amendment privilege against self-incrimination.  Upon
complying with the order, the witness will be immune from
criminal prosecution for any act which is the subject matter of
the order.  The witness will not be immune to a prosecution for
perjury during the testimony given.  Further, the witness could
still face civil lawsuits or administrative action for the
event.  However, none of the witness's testimony, or any leads
from such testimony, may be used against the witness in such
actions.

A prosecutor may be granted such an order only upon the approval
of a verified application for witness immunity by a judge who is
not involved with any other part of the criminal proceedings.
The application for witness immunity must offer proof that the
individual is likely to claim the Fifth Amendment privilege and
the testimony is either:

(1) necessary to the investigation and otherwise unobtainable; or

(2) necessary for the prosecutor to prove a defendant's guilt
beyond a reasonable doubt.

A witness defying such a court order may be found in contempt of
court, and committed to the county jail until he or she complies
with the order, or until the conclusion of the trial.  Such
commitment cannot exceed one year.

Any grand jury proceeding that hears immunized testimony must be
recorded.  If a person is indicted as a result of such immunized
testimony, the prosecutor must provide a transcription of the
immunized testimony to all defendants.

FISCAL NOTE:  Estimated Net Cost to General Revenue Fund of
$24,500 for FY 1998, $30,282 for FY 1999, and $31,191 for FY
2000.

HB 339, HCA 1 -- WITNESS IMMUNITY

CO-SPONSORS:  Kreider, Crump

COMMITTEE ACTION:  Voted "do pass" by the Committee on Judiciary
by a vote of 15 to 1.

This bill allows a court, upon written request by a prosecuting
attorney, to order a witness to testify or provide other
information which the witness refuses to give on the basis of
the Fifth Amendment privilege against self-incrimination.  Upon
complying with the order, the witness will be immune from
criminal prosecution for any act which is the subject matter of
the order.  The witness will not be immune to a prosecution for
perjury during the testimony given.

A prosecutor may be granted such an order only upon the approval
of a verified application for witness immunity by a judge who is
not involved with any other part of the criminal proceedings.
The application for witness immunity must offer proof that the
individual is likely to claim the Fifth Amendment privilege and
the testimony is either: (1) necessary to the investigation and
otherwise unobtainable; or (2) necessary for the prosecutor to
prove a defendant's guilt beyond a reasonable doubt.

A witness defying such a court order may be found in contempt of
court, and committed to the county jail until he or she complies
with the order, or until the conclusion of the trial.  Such
commitment cannot exceed one year.

Any grand jury proceeding that hears immunized testimony must be
recorded.  If a person is indicted as a result of such immunized
testimony, the prosecutor must provide a transcription of the
immunized testimony to all defendants.

HCA 1 -- Makes the immunity apply only to criminal prosecution.
A witness could still face civil lawsuits or administrative
action for the event.  However, none of the witness's testimony,
or any leads from such testimony, may be used against the
witness in such actions.

FISCAL NOTE:  Estimated Net Cost to General Revenue Fund of
$24,500 in FY 1998, $30,282 in FY 1999, & $31,191 in FY 2000.

PROPONENTS:  Supporters say that this legislation, which is
already the law in federal court and in 42 states, is needed for
prosecutors to force witnesses to testify.  People witness
violent murders, and may even tell police what happened, but
then when they get into court, they "plead the Fifth", so that
they don't have to testify.  These witnesses often have no real
basis on which to claim a Fifth Amendment privilege, because
they usually have neither committed, nor been charged with a
crime.  But they learn that by "taking five" they don't have to
testify.  So out of loyalty to their friend or simply because
they don't want to be bothered, they refuse to testify.
Prosecutors are not allowed to question the witness's claim to
Fifth Amendment protection, and any statements the witness may
have told police are inadmissible as hearsay.  So murderers and
other violent criminals go free.

Testifying for the bill were Representative May; MO Assoc. of
Prosecuting Attorneys; Bob McCullough, Prosecuting Attorney, St.
Louis County; Rich Callahan, Prosecuting Attorney, Cole County;
Kansas City Police Dept.; and Gary Kempker, Director, MO Dept.
of Public Safety.

OPPONENTS:  Those who oppose the bill say that the Fifth
Amendment has served well for more than 200 years.  This bill
could affect witnesses' legal rights.  If witnesses are forced
to testify, then such witnesses should have counsel appointed
for them.  But the bill makes no provision for that.

Testifying against the bill were MO Association of Criminal
Defense Lawyers.

Richard Smreker, Research Analyst

HB 339 -- Compelling Witness Testimony

Sponsor:  Krieder

This bill allows a court, upon written request by a prosecuting
attorney, to order a witness to testify or provide other
information which the witness refuses to give on the basis of
the Fifth Amendment privilege against self-incrimination.  Upon
complying with the order, the witness will be immune from
prosecution or any other penalty, criminal or otherwise, for any
act which is the subject matter of the order.  The witness will
not be immune to a prosecution for perjury during the testimony
given.

A prosecutor may be granted such an order only upon the approval
of a verified application for witness immunity by a judge who is
not involved with any other part of the criminal proceedings.
The application for witness immunity must offer proof that the
individual is likely to claim the Fifth Amendment privilege and
the testimony is either:

(1) necessary to the investigation and otherwise unobtainable; or

(2) necessary for the prosecutor to prove a defendant's guilt
beyond a reasonable doubt.

A witness defying such a court order may be found in contempt of
court, and committed to the county jail until he or she complies
with the order, or until the conclusion of the trial.  Such
commitment cannot exceed one year.

Any grand jury proceeding that hears immunized testimony must be
recorded.  If a person is indicted as a result of such immunized
testimony, the prosecutor must provide a transcription of the
immunized testimony to all defendants.