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