In re Birdsong

The opinion of the court was delivered by This case presents the question of whether the state of Kansas may compel testimony from an unwilling witness, who invokes the constitutional privilege against compulsory self-incrimination, when witness immunity from prosecution or punishment is conferred by the state as provided in K.S.A. 22-3415 (Weeks). The question arose under the following circumstances. Ed Mufich was charged with commercial gambling. The appellant Paul Birdsong was called as a state witness at the preliminary hearing and refused to respond to questions, claiming a constitutional privilege against compulsory self-incrimination under the Fifth Amendment to the United States Constitution and under Section 10 of the Kansas Bill of Rights. The district attorney then gave appellant a written grant of immunity pursuant to K.S.A. 22-3415 (Weeks) which reads as follows: To: PAUL C. BIRDSONG GRANT OF IMMUNITY Comes now Nick A. Tomasic and states: 1. That I am the duly elected, qualified and acting District Attorney for the 29th Judicial District, State of Kansas; and 2. That pursuant to K.S.A. 1972 Supp. 22-3102 and 22-3415, I have the power to grant immunity from prosecution to any person; and, 3. That I, in my official capacity as District Attorney, herewith grant to Paul C. Birdsong full and complete immunity from prosecution or punishment on account of any transaction or matter contained in any statement or about which such person may be compelled to testify and such statement or testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance; and, 4. That the aforedescribed grant of immunity is given for the purpose of compelling testimony from Paul C. Birdsong in the prosecution of the above styled action.