Kansas Code of Criminal Procedure

K.S.A. Chapter 22 - Article 30 - Grand Juries

Current through end of 2017 legislative session

22-3001        Grand juries; summoning; membership; quorum.

22-3002        Objections.

22-3003        Oaths of jurors.

22-3004        Presiding juror and deputy presiding juror.

22-3005        Charge by the court.

22-3006        Compensation; employees.

22-3007        Duty of prosecuting attorney.

22-3008        Witnesses; immunity.

22-3009        Counsel for witness.

22-3010        Who may be present.

22-3011        Indictment, procedure.

22-3012        Secrecy of proceedings and disclosure.

22-3013        Discharge and excuse.

22-3014        Witness fees.

22-3015        Matters of form, time, place, names.

22-3016        Removal of judge.

22-3001. Grand juries; summoning; membership; quorum.

          (a) A majority of the district judges in any judicial district may order a grand jury to be summoned in any county in the district when it is determined to be in the public interest.

          (b) The district or county attorney in such attorney’s county may petition the chief judge or the chief judge’s designee in such district court to order a grand jury to be summoned in the designated county in the district to consider any alleged felony law violation. The attorney general in any judicial district may petition the chief judge or the chief judge’s designee in such judicial district to order a grand jury to be summoned in the designated county in the district to consider any alleged felony law violation if authorized by the district or county attorney in such judicial district or if jurisdiction is otherwise authorized by law. The chief judge or the chief judge’s designee in the district court of the county shall then consider the petition and, if it is found that the petition is in proper form, as set forth in this subsection, shall order a grand jury to be summoned within 15 days after receipt of such petition.

          (c) (1) A grand jury shall be summoned in any county within 60 days after a petition praying therefor is presented to the district court, bearing the signatures of a number of electors equal to 100 plus 2% of the total number of votes cast for governor in the county in the last preceding election.

          (2) The petition, upon its face, shall state the name, address and phone number of the person filing the petition, the subject matter of the prospective grand jury, a reasonably specific identification of areas to be inquired into and sufficient general allegations to warrant a finding that such inquiry may lead to information which, if true, would warrant a true bill of indictment.

           (3) (A) The petition shall be in substantially the following form:

          The undersigned qualified electors of the county of ______________ and state of Kansas hereby request that the district court of ______________ county, Kansas, within 60 days after the filing of this petition, cause a grand jury to be summoned in the county to investigate alleged violations of law and to perform such other duties as may be authorized by law.

          (B) (i) The signatures to the petition need not all be affixed to one paper, but each paper to which signatures are affixed shall have substantially the foregoing form written or printed at the top thereof. Each signer shall add to such signer's signature such signer's place of residence, giving the street and number or rural route number, if any, and shall show the precinct and ward or township of which such signer is an elector. One of the signers of each paper shall verify upon oath that each signature appearing on the paper is the genuine signature of the person whose name it purports to be and that such signer believes that the statements in the petition are true.

          (ii) The petition shall be filed in the office of the clerk of the district court who shall forthwith transmit it to the county election officer, who shall determine whether the persons whose signatures are affixed to the petition are qualified electors of the county. Thereupon, the county election officer shall return the petition to the clerk of the district court, together with such election officer's certificate stating the number of qualified electors of the county whose signatures appear on the petition and the aggregate number of votes cast for all candidates for governor in the county in the last preceding election.

          (iii) The judge or judges of the district court of the county shall then consider the petition and, if it is found that the petition is in proper form and bears the signatures of the required number of electors, a grand jury shall be ordered to be summoned. If a grand jury is not summoned because of a finding that the petition, substantially in the form required by this subsection on its face, is not in proper form, the person who filed the petition and whose name, address and phone number appear on the face of each petition shall have the right to appeal the decision to not summon a grand jury as a final judgment pursuant to K.S.A. 22-3601, and amendments thereto.

          (4) After a grand jury is summoned pursuant to this subsection, but before it begins deliberations, the judge or judges of the district court of the county in which the petition is presented shall provide instructions to the grand jury regarding its conduct and deliberations, which instructions shall include, but not be limited to, the following:

          (A) You have been impaneled as a grand jury pursuant to a citizens’ petition filed in this court, signed by (insert number) qualified electors of this county, stating (insert the subject matter described in the petition, including a reasonably specific identification of the areas to be inquired into and the allegations sufficient to warrant a finding that the grand jury’s inquiry may lead to information which, if true, would warrant a true bill of indictment.) You are charged with making inquiry with regard to this subject matter and determining whether the facts support allegations warranting a true bill of indictment.

          (B) The person filing the citizens’ petition filed in this court must be the first witness you call for the purpose of presenting evidence and testimony as to the subject matter and allegations of the petition.

          (C) You may, with the approval of this court, employ special counsel and investigators, and incur such other expense for services and supplies as you and this court deem necessary. Any special counsel or investigator you employ shall be selected by a majority vote of your grand jury. You may make such selection only after hearing testimony from the person who filed the citizens’ petition. You may utilize the services of any special counsel or investigator you employ instead of, or in addition to, the services of the prosecuting attorney.

          (D) If any witness duly summoned to appear and testify before you fails or refuses to obey, compulsory process will be issued by this court to enforce the witness’ attendance.

          (E) If any witness appearing before you refuses to testify or to answer any questions asked in the course of the witness’ examination, you shall communicate that fact to this court in writing, together with a statement regarding the question the witness refuses to answer. This court will determine and inform you of whether the witness is bound to answer or not. However, no witness appearing before you can be compelled to make any statement which will incriminate such witness.

          (F) Any person may file a written request with the prosecuting attorney or with the foreman of the grand jury and request to testify or retestify in an inquiry before a grand jury or to appear before a grand jury. Any written request shall include a summary of such person’s written testimony.

          (G) At the conclusion of your inquiry and determination, you will return either a no bill of indictment or a true bill of indictment.

          (d) The grand jury shall consist of 15 members and shall be drawn, qualified and summoned in the same manner as petit jurors for the district court. Twelve members thereof shall constitute a quorum. The judge or judges ordering the grand jury shall direct that a sufficient number of legally qualified persons be summoned for service as grand jurors. In the case of grand juries impaneled pursuant to subsection (c), the judge or judges ordering the grand jury shall allow the person that filed the petition under the provisions of subsection (c)(2), and such person’s attorney, to witness the instructions to the grand jury regarding its conduct and deliberations pursuant to subsection (c)(4).

History: L. 1970, ch. 129, § 22-3001; L. 1976, ch. 163, § 12; L. 1986, ch. 115, § 61; L. 2011, ch. 100, § 8, L. 2013, ch. 85, § 2; L. 2016, ch. 87, § 3; L. 2017, ch. 92, § 7; July 1.

22-3002. Objections.

          (a) The prosecuting attorney may challenge the array of jurors on the ground that the grand jury was not selected, drawn or summoned in accordance with law, and may challenge an individual juror on the ground that the juror is not legally qualified. Challenges by the state shall be made before the administration of the oath to the jurors and shall be tried by the court.

          (b) A motion to dismiss the indictment made by the defendant may be based on objections to the array or on the lack of legal qualification of an individual juror. An indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to K.S.A. 22-3004 and amendments thereto that 12 or more jurors, after deducting the jurors not legally qualified, concurred in finding the indictment.

          (c) After the prosecutor has conducted an examination of the prospective grand jurors under this section, a list of all remaining legally qualified grand jurors shall be approved by the court and submitted to the clerk of the court of such county for a second drawing of grand juror names pursuant to K.S.A. 43-107, and amendments thereto.

History: L. 1970, ch. 129, § 22-3002; L. 2013, ch. 85, § 3; July 1.

22-3003. Oaths of jurors.

          (a) An oath or affirmation shall be administered to the presiding juror of the grand jury, in substance as follows:

          "You, as presiding juror of the grand jury, shall diligently inquire, and true presentment make, of all public offenses against the laws of this state cognizable by this court, committed or triable within this county, of which you have or can obtain legal evidence. You shall present no person through malice, hatred or ill will, nor leave any unpresented through fear, favor or affection, or for any reward or the promise of hope thereof, but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding."

          (b) Other members of the grand jury shall be administered the following oath:

          "The same oath or affirmation, which your presiding juror has taken now before you on the presiding juror's part, you and each of you shall well and truly observe on your part."

History: L. 1970, ch. 129, § 22-3003; L. 1984, ch. 112, § 17; L. 2013, ch. 85, § 4; July 1.

22-3004. Presiding juror and deputy presiding juror.

          (a) The court shall appoint one of the jurors to be presiding juror and another to be deputy presiding juror.

          (b) The presiding juror shall have power to administer oaths and affirmations and shall sign all indictments.

          (c) The presiding juror or another juror designated by the presiding juror shall keep a record of the name of each juror concurring in the finding of every indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the court.

          (d) During the absence of the presiding juror, the deputy presiding juror shall act as presiding juror.

History: L. 1970, ch. 129, § 22-3004; L. 1984, ch. 112, § 18; L. 2013, ch. 85, § 5; July 1.

22-3005. Charge by the court.

          (a) When a grand jury is impaneled and sworn, it shall be charged by the judge who summoned it. In so doing, the judge shall give the grand jurors such information as the judge deems proper and as is required by law, as to their duties, and as to any charges of crimes known to the court and likely to come before the grand jury.

          (b) When the grand jury has been impaneled, sworn and charged, it shall retire to a private room, and inquire into the crimes cognizable by it.

History: L. 1970, ch. 129, § 22-3005; L. 2013, ch. 85, § 6; July 1.

22-3006. Compensation; employees.

          (a) Persons summoned for service as grand jurors shall be compensated for their service and expenses at the rates provided by law for the compensation of petit jurors in the district court. Such compensation shall be paid from the general fund of the county.

          (b) The grand jury shall employ a certified shorthand reporter who shall make a stenographic record of all testimony and other proceedings before the grand jury. The compensation of the reporter shall be fixed by the district court and paid from the general fund of the county.

          (c) The grand jury may, with the approval of the district court, employ investigators and, except in the case of grand juries impaneled pursuant to subsection (b) of K.S.A. 22-3001, and amendments thereto, employ special counsel. The grand jury may also incur other expenses for services and supplies as it and the district court may deem necessary. Compensation for such services and supplies shall be fixed by the district court and shall be paid from the general fund of the county. Any special counsel or investigator employed by the grand jury shall be selected by majority vote of such grand jury only after hearing testimony from the person filing the petition pursuant to K.S.A. 22-3001, and amendments thereto. Subject to the provisions of this section, the grand jury shall have all authority to investigate any concerns associated with such petition.

History: L. 1970, ch. 129, § 22-3006; L. 2013, ch. 85, § 7; July 1.

22-3007. Duty of prosecuting attorney.

          (a) In the case of grand juries impaneled pursuant to subsection (a) or (c) of K.S.A. 22-3001, and amendments thereto, the prosecuting attorney shall:

          (1) When requested by any grand jury attend sessions thereof for the purpose of examining witnesses or giving the grand jury advice upon any legal matter, and

          (2) upon such attorney's request, be permitted to appear before the grand jury for the purpose of giving information relative to any matter cognizable by the grand jury, and may be permitted to interrogate witnesses if the grand jury deems it necessary.

          (b) In the case of grand juries impaneled pursuant to subsection (b) of K.S.A. 22-3001, and amendments thereto, the prosecuting attorney shall:

          (1) Attend all sessions thereof and inform the grand jury of all offenses liable to indictment and evidence of which will be presented to them for consideration;

          (2) present witnesses and examine such witnesses on all matters to be considered by the grand jury; and

          (3) give the grand jury advice upon all questions related to the proper discharge of their duties.

History: L. 1970, ch. 129, § 22-3007; L. 2013, ch. 85, § 8; July 1.

22-3008. Witnesses; immunity.

          (a) Whenever required by any grand jury, its presiding juror or the prosecuting attorney, the clerk of the court in which the jury is impaneled shall issue subpoenas and other process to bring witnesses to testify before the grand jury. The person who filed the petition pursuant to K.S.A. 22-3001, and amendments thereto, shall be the first witness called by the grand jury for the purpose of presenting evidence and testimony as to the subject matter and allegations of the petition.

          (b) If any witness duly summoned to appear and testify before a grand jury fails or refuses to obey, compulsory process shall be issued to enforce the witness' attendance, and the court may punish the delinquent in the same manner and upon the same proceedings as provided by law for disobedience of a subpoena issued out of the court in other cases.

          (c) If any witness appearing before a grand jury refuses to testify or to answer any questions asked in the course of the witness' examination, the fact shall be communicated to a district judge of the judicial district in writing, on which the question refused to be answered shall be stated. The judge shall then determine whether the witness is bound to answer or not, and the grand jury shall be immediately informed of the decision.

          (d) No witness before a grand jury shall be required to incriminate the witness' self.

          (e) (1) The county or district attorney, or the attorney general, at any time, on behalf of the state, and the district judge, upon determination that the interest of justice requires, and after giving notice to the prosecuting attorney and hearing the prosecuting attorney's recommendations on the matter, may grant in writing to any person:

          (A) Transactional immunity. Any person granted transactional immunity shall not be prosecuted for any crime which has been committed for which such immunity is granted or for any other transactions arising out of the same incident.

          (B) Use and derivative immunity. Any person granted use and derivative use immunity may be prosecuted for any crime, but the state shall not use any testimony against such person provided under a grant of such immunity or any evidence derived from such testimony. Any defendant may file with the court a motion to suppress in writing to prevent the state from using evidence on the grounds that the evidence was derived from and obtained against the defendant as a result of testimony or statements made under such grant of immunity. The motion shall state facts supporting the allegations. Upon a hearing on such motion, the state shall have the burden to prove by clear and convincing evidence that the evidence was obtained independently and from a collateral source.

          (2) Any person granted immunity under either or both of subsections (e)(1)(a) or (e)(1)(b) may not refuse to testify on grounds that such testimony may self incriminate unless such testimony may form the basis for a violation of federal law for which immunity under federal law has not been conferred. No person shall be compelled to testify in any proceeding where the person is a defendant.

          (3) No immunity shall be granted for perjury as provided in K.S.A. 21-5903 and amendments thereto which was committed in giving such evidence.

          (f) If the judge determines that the witness must answer and if the witness persists in refusing to answer, the witness shall be brought before the judge, who shall proceed in the same manner as if the witness had been interrogated and had refused to answer in open court.

          (g) Any person may file a written request with the prosecuting attorney or with the foreman of the grand jury and request to testify or retestify in an inquiry before a grand jury or to appear before a grand jury. Any written request shall include a summary of such person’s written testimony.

History: L. 1970, ch. 129, § 22-3008; L. 1976, ch. 163, § 13; L. 1984, ch. 112, § 19; L. 1986, ch. 115, § 62; L. 1999, ch. 56, § 1; L. 2011, ch. 30, § 123, L. 2013, ch. 85, § 9; July 1.

22-3009. Counsel for witness.

          (a) Any person called to testify before a grand jury must be informed that such person has a right to be advised by counsel and that such person may not be required to make any statement which will incriminate such person. Upon a request by such person for counsel, no further examination of the witness shall take place until counsel is present. In the event that counsel of the witness' choice is not available, the witness shall be required to obtain other counsel within three days in order that the work of the grand jury may proceed. If such person is indigent and unable to obtain the services of counsel, the court shall appoint counsel to assist such person who shall be compensated as counsel appointed for indigent defendants in the district court.

          (b) Counsel for any witness may be present while the witness is testifying and may interpose objections on behalf of the witness. Such counsel shall not be permitted to examine or cross-examine such counsel's client or any other witness before the grand jury.

History: L. 1970, ch. 129, § 22-3009; L. 2013, ch. 85, § 10; July 1.

22-3010. Who may be present.

          Prosecuting attorneys, special counsel employed by the grand jury, the witness under examination and such witness' counsel, interpreters when needed and, for the purpose of taking the evidence, the reporter for the grand jury, may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.

History: L. 1970, ch. 129, § 22-3010; L. 2013, ch. 85, § 11; July 1.

22-3011. Indictment, procedure.

          (a) An indictment may be found only on the concurrence of 12 or more grand jurors. When an indictment is found, the presiding juror shall endorse thereon "a true bill" and shall sign the presiding juror's name as presiding juror.

          (b) When 12 or more grand jurors do not concur in finding an indictment, the presiding juror shall certify that the indictment is "not a true bill."

          (c) Indictments found by the grand jury shall be presented by its presiding juror, in the jury's presence, to the court and shall be filed and remain as records of the court.

History: L. 1970, ch. 129, § 22-3011; L. 1984, ch. 112, § 20; L. 2013, ch. 85, § 12; July 1.

22-3012. Secrecy of proceedings and disclosure.

          (a) Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror shall be made to the prosecuting attorney for use in the performance of such attorney's duties.

          (b) Otherwise a juror, attorney, interpreter, reporter or any typist who transcribes recorded testimony shall not disclose matters occurring before the grand jury except, upon court order:

          (1) The testimony of a witness before the grand jury may be disclosed to a defendant to determine whether it is consistent with testimony given before the court, but only upon a showing of good cause;

          (2) evidentiary materials presented to one grand jury may be disclosed to a succeeding grand jury; and

          (3) grand jury testimony by a defendant may be disclosed to such defendant, but only in the criminal action resulting from such testimony.

          (c) No obligation of secrecy may be imposed upon any person except in accordance with this section. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.

History: L. 1970, ch. 129, § 22-3012; L. 2013, ch. 85, § 13; July 1.

22-3013. Discharge and excuse.

          (a) A grand jury impaneled pursuant to subsection (a) or (c) of K.S.A. 22-3001, and amendments thereto, shall serve until it shall advise the court in writing that it has completed its investigation, but no such grand jury shall serve for more than three months unless extended by order of the district court. The district court may, before the expiration of the tenure of such grand jury, make an order extending such grand jury for an additional period of not to exceed three months if the court finds that an investigation begun by such grand jury cannot be completed within the initial three months period and that the public interest requires the continuation of such grand jury.

          (b) A grand jury impaneled pursuant to subsection (b) of K.S.A. 22-3001, and amendments thereto, shall serve for a period of six months. The district court may, before the expiration of the tenure of such grand jury, make an order extending such grand jury for an additional period of not to exceed six months upon good cause shown by such grand jury.

          (c) At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the juror excused.

History: L. 1970, ch. 129, § 22-3013; L. 2007, ch. 190, § 3; L. 2013, ch. 85, § 14; July 1.

22-3014. Witness fees.

          (a) Witnesses attending a grand jury in response to a subpoena shall be allowed the same fees as are allowed witnesses in criminal cases in the district court.

          (b) Such witness fees shall be paid from the general fund of the county upon a certificate of attendance signed by the presiding juror of the grand jury.

History: L. 1970, ch. 129, § 22-3014; L. 1984, ch. 112, § 21; L. 2013, ch. 85, § 15; July 1.

22-3015. Matters of form, time, place, names.

          (a) Matters of form, time, place, names. At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity for the defendant to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place and names of persons when such amendment does not change the substance of the charge, and does not prejudice the defendant on the merits. Upon ordering an amendment, the court, for good cause shown, may grant a continuance to provide the defendant adequate opportunity to prepare a defense.

          (b) Prohibition as to matters of substance. An indictment shall not be amended as to the substance of the offense charged.

          (c) This section shall be part of and supplemental to article 30 of chapter 22 of the Kansas Statutes Annotated, and amendments thereto.

History: L. 2013, ch. 85, § 16; July 1.

22-3016. Removal of judge.

          (a) Upon a majority vote of the grand jury, the grand jury may seek the removal of the assigned judge pursuant to K.S.A. 20-311d, and amendments thereto.

          (b) This section shall be part of and supplemental to article 30 of chapter 22 of the Kansas Statutes Annotated, and amendments thereto.

History: L. 2013, ch. 85, § 18; July 1.