Reference to exercise of privilege; presumption and adverse inference not permitted

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. Law Review and Bar Journal References: "The Physician-Patient Privilege Under the New Code," Steven P. Flood, 33 J.B.A.K. 100, 101 (1964). The privilege against self-discrimination, John Light, 14 K.L.R. 531, 533 (1966). "Criminal Procedure—Severed Defendant's Fifth Amendment Refusal to Testify at Co-defendant's Trial is Admissible to Impeach Defendant's Alibi Defense at His Own Trial—State v. Nott," Joe Rebein, 33 K.L.R. 189, 195 (1984). "Closing Argument: The Final Fatal Flaw," Roger W. Badeker, 60 J.K.B.A. No. 3, 37, 39 (1991). "Evidence for the family lawyer: Intrafamily wiretapping, the Fifth Amendment and other selected topics," Steve Leben, 68 J.K.B.A. No. 3, 24 (1999). "Invocation of the Fifth Amendment in Kansas Proceedings: Application of the Privilege and Rebutting the Imposition of Adverse Inferences," Jeff D. Morris, 73 J.K.B.A. No. 3, 14 (2004). Criminal Procedure Survey, 56 K.L.R. 745 (2008). CASE ANNOTATIONS 1. Referred to in determining subpoena issued under K.S.A. 44-1004 for employee's arrest and conviction records not violative of constitutional right of privacy. Atchison, T.&S.F. Rly. Co. v. Lopez, 216 Kan. 108, 125, 531 P.2d 455. 2. Questions on vior dire examination did not violate defendant's privilege not to testify under K.S.A. 60-423, nor constitute impermissible comment. State v. Freeman, 216 Kan. 653, 655, 534 P.2d 226. 3. Improper cross-examination by prosecutor regarding defendant's assertion of fifth-amendment rights; harmless error. State v. Dodson, 222 Kan. 519, 522, 565 P.2d 291. 4. Instruction given not prejudicial reference to defendant's failure to testify. State v. Perry, 223 Kan. 230, 235, 236, 573 P.2d 989. 5. Robbery conviction reversed; improper comment by codefendant's counsel upon the defendant's failure to testify. State v. Reeves, 224 Kan. 90, 93, 577 P.2d 1175. 6. Trial court erred in overruling defendant's motion for a new trial because of comments by codefendant's counsel on defendant's failure to testify. State v. Gowler, 7 Kan. App. 2d 485, 489, 644 P.2d 473 (1982). 7. Where defendant testified at own trial, court erred in prohibiting cross-examination regarding refusal to testify at earlier trial of fellow defendant. State v. Nott, 234 Kan. 34, 40, 669 P.2d 660 (1983). 8. Defendant, by taking stand, effectively removed possible prejudice in jurors' minds on earlier prosecutorial comments on failure to testify. State v. Pursley, 238 Kan. 253, 266, 710 P.2d 1231 (1985). 9. No violation of constitutional rights when lack of written statement mentioned while officer testified about oral confession. State v. Lowe, 238 Kan. 755, 764, 715 P.2d 404 (1986). 10. Prosecutorial comment on defendant's failure to testify created reasonable doubt as to effect on verdict. State v. Jagger, 11 Kan. App. 2d 350, 351, 720 P.2d 673 (1986). 11. Cited; prosecutorial comment on defendant's failure to testify in light of late endorsement of witness with inculpatory evidence examined. State v. Beebe, 244 Kan. 48, 53, 766 P.2d 158 (1988). 12. When admissibility of defendant's postarrest/post-Miranda silence permitted examined. State v. Searles, 246 Kan. 567, 574, 793 P.2d 724 (1990). 13. Whether prosecutor's comments on defendant's failure to testify were so prejudicial as to require reversal examined. State v. Davis, 255 Kan. 357, 361, 874 P.2d 1156 (1994). 14. Prosecutor's comment not of such character as jury would necessarily understand as comment on defendant's failure to testify. State v. Ninci, 262 Kan. 21, 47, 936 P.2d 1364 (1997). 15. Comment by prosecutor was not unconstitutionally improper reference to defendant's failure to testify. State v. Higgenbotham, 264 Kan. 593, 600, 957 P.2d 416 (1998). 16. Prosecutor's comments in closing argument were not comments on failure of defendant to testify. State v. Smith, 268 Kan. 222, 240, 993 P.2d 1213 (1999). 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