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Date: 04-19-2024
Case Style:
Case Number: 126,130arge
Judge: G. Gordon Atcheson
Court: IN THE COURT OF APPEALS OF THE STATE OF KANSAS (Shawnee Copunty)
Plaintiff's Attorney: Kristafer R. Ailslieger, deputy solicitor general, and Kris W. Kobach, attorney general
Defendant's Attorney: Heather R. Fletcher
Description:
Given the issue on appeal, we may quickly sketch the underlying criminal charges
against Defendant Christopher Shawn Adams. The procedural developments in the
district court more closely frame the legal dispute.
A couple of hours after a Saturday night slipped into Sunday morning in
September 2021, a man was punched in the face outside a bar and grill in downtown
Hays. The man's jaw and nose were broken in the sudden attack, and he did not know
who struck him. Police officers responded quickly, but none of the onlookers could
identify the attacker.
The police received a report of a domestic disturbance nearby. When they arrived,
they found Lang, Adams, and a third man. The man told police he saw a physical dispute
between Lang and Adams, attempted to intervene, and called 911. According to the man,
Adams struck him. When questioned by officers there—in a recorded interview—Lang
said Adams grabbed her and threw her to the ground. She also said Adams had punched a
man outside a bar, knocking him to the ground. Lang said she was a nurse and briefly
attended to the man.
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About a week later, the State filed three charges against Adams: (1) aggravated
battery, a severity level 4 person felony, for punching the man near the bar and grill; (2)
misdemeanor domestic battery of Lang; and (3) misdemeanor battery of the man who
stepped into their altercation. The State called Lang at Adams' preliminary hearing on the
aggravated battery charge. In her testimony, Lang said she did not see Adams punch
anyone outside the bar and grill. And she testified she did not recall what she had told the
police because she was quite intoxicated that night. The State called one of the police
officers and played the recorded interview of Lang in which she inculpated Adams. The
magistrate judge bound Adams over for trial.
The prosecutor then charged Lang with perjury for testifying falsely at the
preliminary hearing and alternatively with interference with law enforcement for making
false statements to the investigating police officers. Each charge against Lang was a
felony. At the start of Adams' jury trial, Lang appeared with her lawyer and on his advice
informed the district court that she asserted her right not to incriminate herself and,
therefore, would not testify. The prosecutor tendered a grant of use and derivative
immunity to Lang for her trial testimony under K.S.A. 22-3415. By its terms, statutory
immunity does not cover perjury "in giving such evidence." K.S.A. 22-3415(d). While
explaining "the State's theory" as to why Lang could not assert her privilege against selfincrimination, the prosecutor told the district court he viewed Lang's preliminary hearing
testimony as perjurious "and therefore any consistent statements would be perjury again."
Under the circumstances, the district court concluded both that the prosecutor's
grant of immunity would not protect Lang from a new perjury charge if her trial
testimony mirrored her preliminary hearing testimony and that she faced a substantial
threat of being so charged. Accordingly, the district court found Lang had properly
invoked her constitutional right against self-incrimination and did not have to testify in
Adams' trial, making her an unavailable witness. See K.S.A. 60-459(g)(1). The district
court went on to find that the State—having already asserted Lang's preliminary hearing
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testimony to be false—could not offer that testimony during the trial and, in turn, could
not present Lang's out-of-court statements admitted as evidence at the preliminary
hearing.
Based on those evidentiary rulings, the prosecutor concluded the case against
Adams had been substantially impaired and sought an interlocutory appeal under K.S.A.
22-3603 for that reason.
LEGAL ANALYSIS
Appellate Jurisdiction
Although the parties focus on the portion of the district court's ruling allowing
Lang to assert her constitutional privilege against self-incrimination, we necessarily
consider a gatekeeping requirement for the State's interlocutory appeal. To bring an
appeal under K.S.A. 22-3603, the State must show that the district court's exclusion of
evidence would "seriously impede" the successful prosecution of the defendant. State v.
Huninghake, 238 Kan. 155, 157, 708 P.2d 529 (1985). The Kansas Supreme Court has
held the statute covers rulings precluding the presentation of previous testimony of an
unavailable witness if the effect would "substantially impair" the State's case against the
defendant at trial. State v. Newman, 235 Kan. 29, 35, 680 P.2d 257 (1984).
Considering the overall impact of the district court's decision, we readily conclude
the ruling materially undercut the State's ability to prosecute Adams successfully. Lang's
out-of-court statements provided the primary evidence identifying Adams as the
perpetrator of the aggravated battery outside the bar and grill. The preclusion of those
statements satisfied the standard for an interlocutory appeal outlined in Huninghake and
Newman. We, therefore, have appellate jurisdiction. The State and Adams have filed
briefs. Lang has not requested the opportunity to do so, although her constitutional rights
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are directly at stake. We suppose she could have been heard here through her lawyer, as
she was in the district court, if only as an amicus curiae.
Constitutional Privilege Against Self-Incrimination
We now turn to the district court's decision permitting Lang to assert her privilege
against self-incrimination and explain why the ruling properly serves the constitutional
protection given the unusual facts of this case. After addressing that part of the district
court's ruling, we offer a closing comment about the scope of the district court's
concomitant exclusion of evidence. And I elaborate on that comment in a concurring
opinion to suggest the exclusion of Lang's preliminary hearing testimony along with her
out-of-court statement to the police may be error.
The Fifth Amendment to the United States Constitution provides that "[n]o person
. . . shall be compelled in any criminal case to be a witness against himself." The
protection permits an individual to refuse to answer questions put to them in a police
interview, a grand jury proceeding, a judicial hearing or trial, and other governmental
inquisitions when a prosecutor could later use the responses to pursue criminal charges
against that individual. See Michigan v. Tucker, 417 U.S. 433, 440-43, 94 S. Ct. 2357, 41
L. Ed. 2d 182 (1974); Kastigar v. United States, 406 U.S. 441, 444-45, 92 S. Ct. 1653, 32
L. Ed. 2d 212 (1972). The Framers viewed the right as a shield against Star Chamber
prosecutions and the use of confessions induced through physical coercion rendering
them inherently unreliable. See Idaho v. Wright, 497 U.S. 805, 822-23, 110 S. Ct. 3139,
111 L. Ed. 2d 638 (1990) (unreliability of statement given under duress); Tucker, 417
U.S. at 439-41; Miranda v. Arizona, 384 U.S. 436, 444-48, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966) (Fifth Amendment protection against self-incrimination intended to eliminate
physical abuse as means of interrogation). The Fifth Amendment right has been
incorporated through the Fourteenth Amendment and, therefore, applies to criminal
proceedings in state court. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d
6
653 (1964). The Kansas Constitution contains a comparable protection construed
coextensively with the Fifth Amendment privilege. Kansas Constitution Bill of Rights
§ 10; State v. Boysaw, 309 Kan. 526, 537-38, 439 P.3d 909 (2019) (self-incrimination
protections of United States Constitution and Kansas Constitution "coextensive").
Appellate courts review claims involving the privilege against self-incrimination
using the well-known bifurcated standard that accords deference to the district court's
factual findings if they are supported by substantial competent evidence but reserves
unlimited review of the ultimate legal conclusion based on those findings. State v.
Delacruz, 307 Kan. 523, 533, 411 P.3d 1207 (2018). More particularly here, the relevant
facts are undisputed, so the district court's decision necessarily entails a question of law.
State v. Mejia, 58 Kan. App. 2d 229, 231-32, 466 P.3d 1217 (2020); State v. Bennett, 51
Kan. App. 2d 356, 361, 347 P.3d 229 (2015). Consistent with those standards, we
exercise unlimited review over the district court's decision permitting Lang to exercise
her Fifth Amendment privilege.
The Fifth Amendment protection against self-incrimination extends not only to
statements of witnesses that might directly inculpate them but to those that might furnish
an evidentiary link in a prosecutorial chain leading to criminal charges. Ohio v. Reiner,
532 U.S. 17, 20, 121 S. Ct. 1252, 149 L. Ed. 2d 158 (2001); Maness v. Meyers, 419 U.S.
449, 461, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975). To trigger the protection, the prospect
of criminal prosecution must be realistic rather than merely an academic or hypothetical
possibility. Indeed, any witness testifying under oath—even a truthteller—faces an
abstract risk of being charged with perjury by a mistaken or overly zealous prosecutor.
That sort of metaphysical chance grounded in the witness' abstract and entirely subjective
fear is insufficient. Reiner, 532 U.S. at 21 ("danger of 'imaginary and unsubstantial
character' will not suffice") (quoting Mason v. United States, 244 U.S. 362, 366, 37 S. Ct.
621, 61 L. Ed. 1198 [1917]); In re Grand Jury Subpoena (McDougal), 97 F.3d 1090,
1094 (8th Cir. 1996) (recognizing subjective belief of witness that testimony might result
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in perjury charge insufficient to permit assertion of privilege against self-incrimination).
The United States Supreme Court has characterized "the basic test" for invoking the
privilege this way: "'[W]hether the claimant is confronted by substantial and "real," and
not merely trifling or imaginary, hazards of incrimination.'" United States v. Apfelbaum,
445 U.S. 115, 128, 100 S. Ct. 948, 63 L. Ed. 2d 250 (1980) (quoting Marchetti v. United
States, 390 U.S. 39, 53, 88 S. Ct. 697, 19 L. Ed. 2d 889 [1968]); see also In re Flint
Water Cases, 53 F.4th 176, 194 (6th Cir. 2022) (recognizing and quoting Apfelbaum
characterization of when privilege applies); United States v. Gersky, 816 Fed. Appx. 772,
778 (4th Cir. 2020) (unpublished opinion); 3 Wharton's Criminal Evidence § 11:8 (15th
ed. 2023); 21A Am. Jur. 2d, Criminal Law § 1009.
In short, individuals may invoke the privilege when they have "reasonable cause to
apprehend danger" from their statements—the danger being "the peril of prosecution" for
one or more crimes. Hoffman v. United States, 341 U.S. 479, 486, 488, 71 S. Ct. 814, 95
L. Ed. 1118 (1951). In Reiner, the Court cited the apprehension-of-danger language from
Hoffman as articulating a proper basis for asserting the privilege. 532 U.S. at 21. So the
privilege extends to "'any disclosures that the witness reasonably believes could be used
in a criminal prosecution or could lead to other evidence that might be so used.'" Hiibel v.
Sixth Judicial Dist. Court of Nevada, 542 U.S. 177, 190, 124 S. Ct. 2451, 159 L. Ed. 2d
292 (2004) (quoting Kastigar, 406 U.S. at 445); United States v. Solis, 915 F.3d 1172,
1177 (8th Cir. 2019) (relying on Hoffman, court recognizes privilege shields statements
that "reasonably could lead to that individual's own prosecution"); Convertino v. United
States Dept. of Justice, 795 F.3d 587, 593 (6th Cir. 2015) (citing Hoffman and other
authority, court finds privilege properly invoked in face of "'a sound basis for a
reasonable fear of prosecution'") (quoting In re Morganroth, 718 F.2d 161, 169 [6th Cir.
1983]). The reasonable apprehension of criminal prosecution, then, supports a claim of
privilege without necessarily considering the prospects for conviction.
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We need not endeavor to draw a dividing line between the "real" and the "trifling"
in this case. The prosecutor's actions in charging Lang with perjury for her preliminary
hearing testimony in tandem with his assertion during the pretrial hearing that she would
be committing "perjury again" if she testified in the same manner at trial were more than
sufficient to create a substantive and immediate prospect of a new criminal charge. Either
standing alone very likely would have been enough. On the eve of Adams' trial, Lang
faced about as clear a hazard of being prosecuted anew for her consistent testimony as
might be imagined. Lang, therefore, had a Fifth Amendment privilege to avoid placing
herself in that position.
When the circumstances depict a tangible basis for prosecution aided by the
witness' testimony or other compelled statements, the privilege against self-incrimination
should be liberally construed to effect its purpose. Maness, 419 U.S. at 461; Hoffman,
341 U.S. at 486; In re Flint Water Cases, 53 F.4th at 192-93; United States v. Oriho, 969
F.3d 917, 924 n.2 (9th Cir. 2020). Accordingly, individuals may assert they have done
nothing wrong, i.e. they are innocent, yet invoke the privilege if they, nonetheless,
realistically might be prosecuted based on what they would say. Reiner, 532 U.S. at 21.
Likewise, the privilege may attach to future testimonial acts that would tend to be
incriminating and not merely to statements that might implicate the claimant in past
criminal conduct, although such situations would be uncommon. Marchetti, 390 U.S. at
54 (privilege may extend to "hazards of incrimination created . . . as to future acts"
because application not "inflexibly defined by a chronological formula"); see Apfelbaum,
445 U.S. at 129 (recognizing Marchetti rule but finding it factually inapplicable).
Offer of Statutory Immunity
The prosecutor's offer of immunity to Lang under K.S.A. 22-3415 for her trial
testimony does not alter the legal calculus, as the district court correctly determined. The
offer provided use and derivative immunity. As outlined in the statute, use immunity
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precludes the government from using the witness' statements against him or her, and
derivative immunity bars the use of inculpatory evidence uncovered as a result of the
statements. K.S.A. 22-3415(b)(2); see Delacruz, 307 Kan. at 534 (describing use,
derivative, and transactional immunities). But a grant of statutory immunity cannot shield
the recipient from prosecution for perjury based on the statements or other evidence he or
she then provides. K.S.A. 22-3415(d).
So, as the district court correctly recognized, the grant of immunity to Lang would
not extend to a new perjury charge based on her anticipated testimony in Adams' trial if it
were comparable to her preliminary hearing testimony. And, as we have already
explained, Lang faced a real and imminent danger that the prosecutor would charge her
with perjury—for a second time—should she testify that way. In this quite unusual
circumstance, Lang retained her constitutional privilege against self-incrimination
notwithstanding the prosecutor's offer of immunity.
The immunity statute carves out perjury to avoid creating a license to testify
falsely. That is, witnesses granted immunity in the run of cases are expected to testify
truthfully and can be prosecuted for perjury if they do not. For those witnesses the
apprehension of prosecution amounts to the sort of abstract or hypothetical concern that
does not trigger the privilege against self-incrimination. But the prosecutor's strategy here
to charge Lang with perjury for her preliminary hearing testimony created exactly the sort
of real danger permitting an individual to invoke the privilege.
Neither the district court nor this panel is in a position to determine the truth or
falsity of Lang's preliminary hearing testimony or of her anticipated trial testimony as
against the account she gave the police officers. The task belongs to fact-finders—such as
jurors—charged with that duty and having had the opportunity to observe Lang as she
testifies. As we have explained:
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"Sorting out testimonial inconsistencies and evaluating credibility is a function uniquely
entrusted to jurors. And '[t]he judicial process treats an appearance on the witness stand,
with the taking of an oath and the rigor of cross-examination, as perhaps the most
discerning crucible for separating honesty and accuracy from mendacity and
misstatement.' State v. Bellinger, 47 Kan. App. 2d 776, 787, 278 P.3d 975 (2012), rev.
denied 298 Kan. 1204 (2013) (Atcheson, J., dissenting). The ability of the jurors to
observe witnesses as they testify is integral to that evaluation. State v. Scaife, 286 Kan.
614, 624, 186 P.3d 755 (2008). Appellate courts have no comparable vantage point when
they read a trial transcript, and that is precisely why they do not make credibility
determinations." State v. Franco, 49 Kan. App. 2d 924, 936-37, 319 P.3d 551 (2014).
In advance of the trial, the district court was in no better a position to make any sort of
credibility determination in sorting out Lang's conflicting accounts than we are now.
Consistent with the broad construction accorded the privilege, Lang faced a real
danger of being prosecuted for giving what might be truthful testimony and, therefore,
could invoke her right against self-incrimination. The magistrate judge's passing
comment at the conclusion of the preliminary hearing to the effect he thought Lang's
testimony was untruthful doesn't constitute a binding credibility determination. It is no
more than oral dicta, since the magistrate judge was legally bound to view the evidence in
the best light for the State and, thus, to resolve any discrepancies in the State's favor as a
matter of law. See Cadle Company II, Inc. v. Lewis, 254 Kan. 158, 167, 864 P.2d 718
(1993) (district court's "gratuitous" comments that corporate officer was not holder in due
course "not binding upon further consideration of this case"); Anne H. v. Michael B., 1
Cal. App. 5th 488, 500, 204 Cal. Rptr. 3d 495 (2016) ("[T]here is no reason to require
subsequent judges to adhere to an earlier judge's expression of views on issues that were
not actually before him or her . . . [because] [s]uch a rule would grant arbitrary and
unnecessary authority to judicial musings, as opposed to judicial decisions."); People v.
Wandell, 143 A. D. 2d 446, 447, 532 N.Y.S.2d 442 (1988); see State v. Rozell, 315 Kan.
295, Syl. ¶ 2, 508 P.3d 358 (2022) ("[A] preliminary hearing judge does not pass on
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credibility, and, when the evidence conflicts, the judge must accept the version of the
testimony most favorable to the State."); State v. Bell, 268 Kan. 764, 764-65, 1 P.3d 325
(2000) (same).
As the district court pointed out, a prosecutor typically would handle a recanting
witness by calling the witness at trial and then introducing the witness' previous and
conflicting statements inculpating the defendant as substantive evidence via the hearsay
exception in K.S.A. 60-460(a). In their deliberations, the jurors would fulfill their factfinding duty to sort out the worthy accounts from the unworthy and credit the worthy
ones in reaching a verdict. See Shannon v. United States, 512 U.S. 573, 579, 114 S. Ct.
2419, 129 L. Ed. 2d 459 (1994) ("The jury's function is to find the facts and to decide
whether, on those facts, the defendant is guilty of the crime charged."); State v. Kemble,
291 Kan. 109, 120, 238 P.3d 251 (2010) (noting role of jury in trial process as "the finder
of facts"); State v. Bellinger, 47 Kan. App. 2d 776, 807, 278 P.3d 975 (2012) (Atcheson,
J., dissenting) (juries "clean up those messes" involving differing accounts and
recollections of events "by weighing evidence, evaluating credibility, and finding facts").
The prosecutor short-circuited the usual process by charging Lang with perjury for her
preliminary hearing testimony and, in doing so, animated her constitutional privilege
against self-incrimination.
In sum, we find the district court correctly held that Lang could assert her Fifth
Amendment privilege against self-incrimination and, therefore, did not have to testify in
Adams' trial.
Evidentiary Repercussions
Having permitted Lang to assert her Fifth Amendment privilege, the district court
found her to be an unavailable witness. See K.S.A. 60-459(g)(1). As we have outlined, in
completing its pretrial ruling, the district court nonetheless concluded the State could not
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offer Lang's preliminary hearing testimony in Adams' trial. The district court reasoned
that the State had already taken the position that the testimony was false and, therefore,
could not present it to the jury during the trial, although the prosecutor undoubtedly
intended to then offer Lang's out-of-court statements inculpating Adams—just as he had
done at the preliminary hearing. The district court, in turn, thwarted that plan because
without the preliminary hearing testimony, the out-of-court statements amounted to
inadmissible hearsay.
The State has not appealed those aspects of the district court's ruling. They are,
therefore, not in front of us. And, as a result, they are not binding going forward as law of
the case. See State v. Collier, 263 Kan. 629, 632-33, 952 P.2d 1326 (1998) (law of the
case directs that questions raised and decided on appeal bind parties in further
proceedings in that case). They remain interlocutory determinations the district court may
revisit.
Dissent Fails to Account for Key Circumstances of this Case
In opting for reversing the district court, the dissent offers a reductive assessment
of the facts and the law that fails to account for a pair of critical circumstances setting this
case apart from the run of cases applying self-incrimination and immunity doctrines: The
prosecutor chose to charge Lang with perjury for her preliminary hearing testimony—
testimony she presumably would have repeated at trial—and the inability of either the
district court or this court to gauge Lang's truthfulness. The State's decision to formally
place the heavy hand of a perjury prosecution on Lang in advance of her appearance as a
witness at trial upends the governing law, given the demonstrable likelihood she would
face an additional perjury charge for testifying as she already had.
We reemphasize that the constitutional privilege against self-incrimination permits
an individual to refrain from making statements to government agents that would directly
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or indirectly support or advance a criminal prosecution of that individual. Hiibel, 542
U.S. at 190. So the protection shields against the burdens of facing criminal charges and
not just the punitive consequences of a possible conviction. Those burdens include
financial and emotional costs, intrusive bond conditions, and for individuals unable to
post bail the complete loss of liberty as pretrial detainees. See Barker v. Wingo, 407 U.S.
514, 532-33, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) (In assessing constitutional speedy
trial rights, the Court recognized that a criminal prosecution requires the accused to
"liv[e] under a cloud of anxiety, suspicion, and often hostility" and often "oppressive
pretrial incarceration."). Moreover, even a person who asserts his or her innocence may
claim the privilege in the face of a material threat of prosecution. Reiner, 532 U.S. at 21.
The dissent's analysis rests on an unwarranted premise that Lang's preliminary
hearing testimony was false and a repetition of that testimony at Adams' trial would, of
course, also be false. And the dissent, therefore, characterizes the question at hand as
"whether Lang can properly invoke the Fifth Amendment to avoid giving false testimony
in the future." Slip op. at 33. So without having seen Lang testify, the dissent concludes
she lied during the preliminary hearing, and that credibility determination against Lang
infuses its rationale and conclusion. But neither we nor the district court (which hadn't
observed Lang testify) may properly determine she lied then and, as a substitute, invoke
some divination of untruthfulness as a factual foundation to negate her right against selfincrimination.
Armed with its credibility determination against Lang, the dissent examines
Apfelbaum, 445 U.S. 115, at great length. The exercise ultimately establishes that
Apfelbaum is factually inapposite. There, Stanley Apfelbaum was suspected of assisting
in a theft scheme. The federal prosecutor granted Apfelbaum immunity under a federal
statute similar to K.S.A. 22-3415 before he testified in front of a grand jury. The grand
jury later indicted Apfelbaum for two counts of perjury for making false statements in his
testimony. The question before the United States Supreme Court was how much of
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Apfelbaum's immunized testimony the government could introduce against him at trial
apart from the alleged perjurious statements themselves. The Court held that any
otherwise relevant portions of Apfelbaum's grand jury testimony could be admitted at
trial because he had faced no more than a "'trifling or imaginary' hazard of selfincrimination" when he was granted immunity in advance of testifying to the grand jury.
445 U.S. at 130-31.
The factual setting of Apfelbaum and the resulting legal issue bear little
resemblance to Lang's situation. The circumstances would be more nearly analogous if:
(1) Apfelbaum had testified in front of the grand jury without immunity; (2) the United
States Attorney then charged him with perjury for a material statement he made in that
testimony; and (3) the United States Attorney then subpoenaed him to testify in a trial of
another defendant and tendered a statutory grant of immunity that didn't cover perjury in
his trial testimony. In that scenario—like the one confronting Lang—the threat of an
additional perjury charge would be palpably real and would have presented a
demonstrably different legal problem for the Court. There is no reason to assume—as the
dissent does—that the rationale in Apfelbaum should necessarily govern the outcome here
without explicitly accounting for those marked differences.
The failure to undertake that accounting fosters a misguided reasoning by analogy
where a rule stated in one case is detached from its factual underpinnings and applied in
another case with materially different facts. Upon examination, those differences may
call for the rule from the initial case to be substantially modified or abandoned altogether
as inapposite in the later case. See Illinois v. Lidster, 540 U.S. 419, 424, 124 S. Ct. 885,
157 L. Ed. 2d 843 (2004) (Language in judicial opinions should be read "as referring in
context to circumstances similar to the circumstances then before the Court and not
referring to quite different circumstances that the Court was not then considering.");
Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S. Ct. 165, 89 L. Ed. 118 (1944). In
Armour, Justice Robert Jackson admonished lawyers that "words of our opinions are to
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be read in the light of the facts of the case under discussion." 323 U.S. at 133. And he
cautioned: "General expressions transposed to other facts are often misleading." 323
U.S. at 133. Professor Cass Sunstein more recently explained that "analogical reasoning
can go wrong when . . . some similarities between two cases are deemed decisive with
insufficient investigation of relevant differences." Sunstein, On Analogical Reasoning,
106 Harv. L. Rev. 741, 757 (1993).
The dissent effectively treats the prosecutor's decision to charge Lang with perjury
as if it were of no legal or factual relevance in determining whether she then faced a real
threat of an additional perjury charge if she were compelled to testify during Adams'
trial. As a result, the dissent builds its analysis on the notion that Lang's fear of future
prosecution for perjury "is no different from the typical fear facing any other witness."
Slip op. at 34. The assertion is blind to reality. The feared consequence—being charged
with perjury—may be the same. But the chances of facing the consequence are wholly
dissimilar.
As we have explained, the typical witness has only an abstract and entirely
hypothetical chance of being charged with perjury. Lang had already been charged, and
the prosecutor had voiced his position that if her trial testimony matched her preliminary
hearing testimony a new charge would be warranted. In that circumstance, Lang properly
could assert her constitutional right against self-incrimination in the face of a real threat
of further prosecution. In short, when the prosecutor exercised his discretionary authority
to charge Lang with perjury, his decision had multiple legal repercussions—among them,
triggering various of Lang's constitutional rights including her privilege against selfincrimination. Conversely, had the prosecutor done nothing following the preliminary
hearing, Lang would have been similarly situated with the dissent's "any other witness."
See slip op. at 34.
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The dissent likewise misfires in concluding the prosecutor's grant of immunity to
Lang after charging her with perjury negates her privilege against self-incrimination. The
dissent relies on the general rule that a grant of immunity is not a license to commit
perjury. Though true, the proposition in its very generality fails to account for the
peculiar circumstance where the government has already charged an individual with
giving allegedly perjurious testimony and intends to place that individual in a position
where he or she will face an additional perjury charge if he or she repeats the testimony
in another proceeding. In that situation, the government would be actively and powerfully
coercing a truthteller to renounce the truth—replicating the kind of fundamental
governmental abuse the privilege against self-incrimination was intended to prevent.
Rather, the general proposition presumes individuals testifying with grants of
immunity will adhere to the oath they take and will tell the truth. Carving out an
exception from the grant of immunity to permit a prosecution for perjury based on that
testimony simply puts in place a sanction to promote the presumption. The incentive is a
reasonable one. And a contrary rule—immunizing perjury—would entice at least some
witnesses to give false testimony.
Here, however, the prosecutor has jumbled up the incentives in a way that would
punish a particular rendition of relevant events without regard to the truth or falsity of the
rendition. And the rub is that we cannot determine whether Lang may be a truthteller or a
perjurer. Given that forced agnosticism, we should not fall back on a generality
applicable in common circumstances quite unlike those we face where the government
has interceded in an exceptionally punitive fashion to condemn Lang as a perjurer for a
rendition of events it finds disadvantageous in prosecuting Adams in this case. The grant
of immunity, thus, fails of its basic purpose—to incentivize truthful testimony.
Again, the circumstances would be different if there were a sound legal basis at
this juncture to conclude Lang committed perjury when she testified at the preliminary
17
hearing. We would have such a foundation if Lang had pleaded guilty to the perjury
charge already lodged against her or a judge or jury had convicted her following a trial on
that charge. Even compelling evidence of an out-of-court admission from Lang that she
had lied during the preliminary hearing might be enough. But we have nothing of the sort
from which to make a reasoned credibility determination.
The dissent also falls back on a pair of irrelevancies. First, the Court somewhat
cryptically observed in Apfelbaum that "there . . . is no doctrine of 'anticipatory perjury,'"
so a grant of immunity would not shield an individual intent on testifying falsely in the
future. 445 U.S. at 131. Contextually, however, the comment doesn't have much bearing
on Lang's situation. The Court noted that crimes typically require both a bad act and a
bad intent. Perjury is such a crime. That's why a person who testifies honestly though
inaccurately does not commit perjury. The Court linked its observation to the idea that a
potential witness' intent to commit perjury would not itself create a real harm or danger
triggering the privilege against self-incrimination in the first place. 445 U.S. at 131. But,
as we have said, we are in no position to assess Lang's intent, and the prosecutor has
already created the very real danger Lang will face an additional perjury charge. We,
thus, confront something quite different and more complex than a hypothetical witness'
unarticulated design to testify falsely notwithstanding a grant of immunity.
Second, the dissent points out that if Lang were forced to testify in Adams' trial
under a grant of immunity, her testimony could not then be used in the case the
prosecutor has already filed against her. Again, that's true. But it has nothing to do with
the issue we have been asked to decide—whether Lang can be compelled to testify at
Adams' trial under a grant of immunity when the State has announced that a repetition of
her preliminary hearing testimony would support an additional perjury charge against her.
18
Conclusion
The district court correctly permitted Lang to assert her Fifth Amendment
privilege not to testify at Adams' trial. The State's offer of statutory immunity under
K.S.A. 22-3415 was insufficient in the face of its decision to charge Lang with perjury
for her preliminary hearing testimony and the likelihood she would have given
comparable testimony during the trial. We, therefore, affirm the district court on the
specific issue the State has appealed.
Outcome:
Plaintiff's Experts:
Defendant's Experts:
Comments: