BILL ANALYSIS
AB 988
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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
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"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].)
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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.
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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