BILL ANALYSIS                                                                                                                                                                                                    




                                                          AB 988
                                                         Page 1

Date of Hearing: January 16, 1996
Counsel:       David R. Shaw


                ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                      Paula L. Boland, Chair

          AB 988 (Hawkins) - As Amended:  January 4, 1996




 ISSUES:   I.  SHOULD CALIFORNIA LAW BE AMENDED TO ALLOW COURTS, AT  
THE REQUEST OF THE DISTRICT ATTORNEY, TO GRANT EITHER "USE"  
IMMUNITY OR "TRANSACTIONAL" IMMUNITY TO COMPEL A WITNESS TO  
TESTIFY OR PRODUCE EVIDENCE?

         II.  SHOULD CALIFORNIA LAW BE AMENDED TO ALLOW THE SAME  
       TYPE OF IMMUNITY FOR MISDEMEANOR PROCEEDINGS AS IS PROVIDED  
       IN FELONY PROCEEDINGS?


 DIGEST

 Under current law:

1) To the extent that a privilege exists under the Constitution of  
   the United States or the State of California, a person has a  
   privilege to refuse to disclose any matter that may tend to  
   incriminate them.  (Evidence Code section 940.) 

2) In any felony proceeding, or in any investigation before a  
   grand jury for a felony offense, if a person is asked to answer  
   a question or produce  evidence that would tend to incriminate  
   he or she, that person cannot generally be compelled to testify  
   in court, absent a grant of immunity.  (Penal Code section  
   1324.)

3)  At the request of the district attorney, a court can compel a  
witness to testify if it grants the witness immunity from  
prosecution for any crimes about which he or she is required to  
testify.  (Penal Code section 1324.)

4) In any misdemeanor proceeding in any court, if a person is  
   asked to answer a question or produce evidence that would tend  
   to incriminate he or she, that person cannot be compelled to  
   testify in court, unless he or she agrees in writing with the  
   district attorney, subject to court approval, to voluntarily  
   testify and accept a grant of immunity.  (Penal Code section  
   1324.1.)

 This bill:

1) Provides that nothing in this bill shall prohibit the district  
   attorney from requesting a court grant "use" immunity or  








                                                          AB 988
                                                         Page 2

   "transactional" immunity to compel a witness to give testimony  
   or produce evidence.

2) Provides that if the district attorney requests a grant of  
   immunity, in order to compel testimony or produce evidence, the  
   court can compel testimony or produce evidence on the condition  
   that no testimony or other information compelled under the  
   order or any information directly or indirectly derived from  
   the testimony or other information may be used against the  
   witness in a criminal case.

3) Provide that misdemeanor proceedings be treated in the same way  
   as felony proceedings for the purpose of providing immunity.

 COMMENTS

1)   Purpose.  According to the author:

        In California, the prosecution is limited to obtaining  
       transactional immunity (complete immunity) for witnesses  
       who are compelled to testify by court order.  This means  
       that no lesser version of immunity is an option, even  
       though, in some cases it would be in the public's best  
       interest to offer use immunity (limited immunity) in only  
       an individual case rather than to give blanket immunity to  
       a witness for any testimony implicated by the testimony he  
       or she gives.
                                                          
        However, the federal court system and many states permit  
       prosecutors to obtain either transactional immunity or use  
       immunity for witnesses who must be compelled to testify.  
                                                          
        Transactional immunity provides hostile witnesses with an  
       overbroad protection against criminal prosecution.  I  
       believe that California law should be amended to adopt the  
       federal immunity standard so that, if the prosecution can  
       prove independent of the compelled testimony, that the  
       witness committed a crime related to his/her testimony the  
       prosecution shall not be precluded from bringing charges  
       against the witness pertaining to the crime.

2)  Background.  California Penal Code section 1324 provides that  
   witnesses may be compelled to testify as to matters privileged  
   under the 5th Amendment of the United States Constitution by  
   granting an order of transactional immunity.  When enacted in  
   1911 and re-enacted in 1953, only transactional immunity was  
   constitutionally recognized. 

   In 1972, the United States Supreme Court upheld the  
   constitutionality of use immunity.  However, the Court held  
   that the prosecution has a duty to prove that the evidence it  
   proposes to use is derived from a source wholly independent of  
   the compelled testimony and that the testimony was not used as  
   an "investigatory lead".  ( Kastigar v. United States (1972) 406  
   U.S. 441, 452-453 [32 L. Ed. 212, 221-222].)








                                                          AB 988
                                                         Page 3


   California has not amended its immunity statute in response to  
   the Supreme Court's ruling and has continued to provide for  
   complete immunity from prosecution for witnesses compelled to  
   testify at felony or grand jury proceedings.  However,  
   California courts have recognized use immunity in certain  
   civil, juvenile and administrative proceedings.

3)   Transactional Immunity.  California law provides for  
transactional immunity.  Under this type of immunity, when a  
witness is compelled to testify, he or she cannot subsequently be  
prosecuted for the crime or crimes about which he or she  
testifies.


















































                                                          AB 988
                                                         Page 4


4)   Use Immunity.  Under use immunity, when a witness is compelled  
to testify, he or she could subsequently be prosecuted for the  
crime about which he or she testifies.  However, the prosecutor  
would not be able to use any information directly or indirectly  
derived from the testimony, and would have to prove the  
independence of the evidence by clear and convincing evidence.

5)   The Immunity Paradox.  With transactional immunity, a  
prosecutor must choose between granting complete, blanket immunity  
and obtaining his or her testimony or seeking to prosecute that  
individual.

   If use immunity were to be adopted, it would provide the  
   prosecution with the ability to obtain the compelled testimony  
   and still bring charges against the witness if the prosecution  
   can prove, independent of the compelled testimony, that the  
   witness committed a crime related to his/her testimony. 

   The main advantage of use immunity is in cases when the  
   prosecutor has independent evidence sufficient to convict a  
   defendant but needs the testimony of that individual to  
   prosecute a co-defendant.  This is often the case in drug  
   prosecutions.  With transactional immunity, the district  
   attorney is forced to let such an individual go free.  If use  
   immunity is allowed, the district attorney can seek to convict  
   both defendants.

6)   Proponent's to the Bill.  Proponents argue that the effect of  
transactional immunity is to impose blanket immunity for any and  
all criminal acts as the price of obtaining witness testimony.   
Testimony from a co-defendant is often necessary in prosecution of  
drug offenders and gang members since the defendants themselves  
may be only witnesses to the transactions or crimes.  Since the  
United States Supreme Court has ruled that use immunity is  
constitutional, there is no need to extend additional immunity to  
individuals who could otherwise be prosecuted for the crimes which  
they have committed.

7)  Potential Effect.  Use immunity would enhance prosecutorial  
   flexibility by permitting the use of immunized testimony  
   without sacrificing the ability to prosecute where appropriate  
   and reasonable. 

  SOURCE:    California District Attorney's Association 

  SUPPORT:   Doris Tate Crime Victims Bureau

  OPPOSITION:  California Attorneys for Criminal Justice
            American Civil Liberties Union


  Analysis prepared by:  David R. Shaw / apubs / 445-3268