BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 4 5 8 AB 458 (Cook) As Amended April 29, 2009 Hearing date: June 9, 2009 Penal Code MK:br CRIMINAL PROCEDURE: WITNESS TESTIMONY HISTORY Source: Riverside County District Attorney's Office Prior Legislation: AB 988 (Hawkins) - Ch. 302, Stats. 1996 Support: California District Attorneys Association Opposition:California Attorneys for Criminal Justice; Taxpayers for Improving Public Safety (unless amended) Assembly Floor Vote: Ayes 74 - Noes 0 KEY ISSUE SHOULD THE COURT, AT THE REQUEST OF THE PROSECUTOR, COMPEL THE TESTIMONY OF A WITNESS IN A MISDEMEANOR CASE, EVEN IF THAT PERSON IS ASSERTING A PRIVILEGE NOT TO TESTIFY? PURPOSE The purpose of this bill is to allow a court to compel the testimony of a witness claiming a privilege in a misdemeanor case. (More) AB 458 (Cook) PageB Existing law provides that to the extent that a privilege exists under the Constitution of the United States of the State of California, a person has a privilege to refuse to disclose a matter that may tend to incriminate them. (Evidence Code 940.) Existing law provides that in any felony proceeding or in any investigation or proceeding before a grand jury for any felony offense if a person refuses to answer a question or produce evidence of any other kind on the ground that he or she may be incriminated thereby, and if the district attorney of the county or any other prosecuting agency in writing requests the court, in and for that county, to order that person to answer the question or produce the evidence, a judge shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he or she would have been privileged to withhold the answer given or the evidence produced by him or her, 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 any criminal case. But he or she may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order. Nothing in this section shall prohibit the district attorney or any other prosecuting agency from requesting an order granting use immunity or transactional immunity to a witness compelled to give testimony or produce evidence. (Penal Code 1324.) Existing law states that in any misdemeanor proceeding in any court, if a person refuses to answer a question or produce (More) AB 458 (Cook) PageC evidence of any other kind on the ground that he may be incriminated thereby, the person may agree in writing with the district attorney of the county, or the prosecuting attorney of a city, as the case may be, to testify voluntarily pursuant to this section. Upon written request of such district attorney, or prosecuting attorney, the court having jurisdiction of the proceeding shall approve such written agreement, unless the court finds that to do so would be clearly contrary to the public interest. If, after court approval of such agreement, and if, but for this section, the person would have been privileged to withhold the answer given or the evidence produced by him, that person shall not be prosecuted or subjected to penalty or forfeiture for or on account of any fact or act concerning which, in accordance with such agreement, he answered or produced evidence, but he may, nevertheless, be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering or in producing evidence in accordance with such agreement. If such person fails to give any answer or to produce any evidence in accordance with such agreement, that person shall be prosecuted or subjected to penalty or forfeiture in the same manner and to the same extent as he would be prosecuted or subjected to penalty or forfeiture but for this section. (Penal Code 1324.1.) This bill provides instead that in any misdemeanor proceeding in any court, if a person refuses to answer a question or produce evidence of any other kind on the ground that he or she may be incriminated thereby, and if the district attorney of the county in writing requests the court, in and for the county, to order that person to answer the question or produce the evidence, a judge shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced. The court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section he or she would have been privileged to withhold the (More) AB 458 (Cook) PageD answer given or evidence produced by him or her, 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 any criminal case. But he or she may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, failing to answer or in producing or failing to produce evidence in accordance with the order. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION California continues to face a severe prison overcrowding crisis. The Department of Corrections and Rehabilitation (CDCR) currently has about 170,000 inmates under its jurisdiction. Due to a lack of traditional housing space available, the department houses roughly 15,000 inmates in gyms and dayrooms. California's prison population has increased by 125% (an average of 4% annually) over the past 20 years, growing from 76,000 inmates to 171,000 inmates, far outpacing the state's population growth rate for the age cohort with the highest risk of incarceration.<1> In December of 2006 plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On February 9, 2009, the three-judge federal court panel issued a tentative ruling that included the following conclusions with respect to overcrowding: No party contests that California's prisons are overcrowded, however measured, and whether considered in comparison to prisons in other states or jails ---------------------- <1> "Between 1987 and 2007, California's population of ages 15 through 44 - the age cohort with the highest risk for incarceration - grew by an average of less than 1% annually, which is a pace much slower than the growth in prison admissions." (2009-2010 Budget Analysis Series, Judicial and Criminal Justice, Legislative Analyst's Office (January 30, 2009).) (More) AB 458 (Cook) PageE within this state. There are simply too many prisoners for the existing capacity. The Governor, the principal defendant, declared a state of emergency in 2006 because of the "severe overcrowding" in California's prisons, which has caused "substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them." . . . A state appellate court upheld the Governor's proclamation, holding that the evidence supported the existence of conditions of "extreme peril to the safety of persons and property." (citation omitted) The Governor's declaration of the state of emergency remains in effect to this day. . . . the evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions. . . . Although the evidence may be less than perfectly clear, it appears to the Court that in order to alleviate the constitutional violations California's inmate population must be reduced to at most 120% to 145% of design capacity, with some institutions or clinical programs at or below 100%. We caution the parties, however, that these are not firm figures and that the Court reserves the right - until its final ruling - to determine that a higher or lower figure is appropriate in general or in particular types of facilities. . . . Under the PLRA, any prisoner release order that we issue will be narrowly drawn, extend no further than necessary to correct the violation of constitutional rights, and be the least intrusive means necessary to correct the violation of those rights. For this reason, it is our present intention to adopt an order (More) AB 458 (Cook) PageF requiring the State to develop a plan to reduce the prison population to 120% or 145% of the prison's design capacity (or somewhere in between) within a period of two or three years.<2> The final outcome of the panel's tentative decision, as well as any appeal that may be in response to the panel's final decision, is unknown at the time of this writing. This bill does not appear to aggravate the prison overcrowding crisis outlined above. COMMENTS 1. Need for This Bill According to the author: During criminal cases, many witnesses would rather not testify. They may fear retaliation, embarrassment, or exposure to their own crimes. These types of witnesses are common in cases involving gang violence, family violence, and other crimes where witnesses may fear intimidation. Witnesses might attempt to avoid testifying by informing the court that their testimony would jeopardize their privilege against self-incrimination under the 5th Amendment. If the court finds the witness has a basis to raise this privilege, the testimony is prevented, unless the witness receives immunity from the court. In felony cases, immunity is granted under California ----------------------- <2> Three Judge Court Tentative Ruling, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (Feb. 9, 2009). (More) AB 458 (Cook) PageG Penal Code Section 1324. A witness who receives immunity under this section must accept it. In these felony cases, there are two types of immunity available. The first is transactional immunity. Transactional immunity is sometimes called "blanket immunity." For instance, if you cheated on your taxes and you are granted transactional immunity, the government is barred from prosecuting you for cheating on your taxes. The second type of immunity is "use immunity." This is more narrow. With use immunity, you may still be prosecuted for cheating on your taxes, but the prosecution cannot use your testimony, or anything derived from your testimony, against you. However, under current law in misdemeanor cases, the Penal Code allows the witness to refuse immunity. Therefore, it is more difficult to prove misdemeanor cases than felony cases. AB 458 provides that only transactional immunity (or blanket immunity) could be offered in these misdemeanor cases. It will ensure that any evidence relevant in a misdemeanor trial will be brought before the court, without placing the witness at risk of prosecution. It is a much needed change to the Penal Code, so that juries are allowed more access to information on a case before reaching a verdict. The un-intended consequence of current law is that a prosecutor might be enticed to charge the defendant with a felony rather than a misdemeanor, in order to ensure that a witness' testimony can be compelled. AB 458 will ensure that any evidence relevant in a misdemeanor trial will be brought before the court. 2. The Fifth Amendment Right against Self-Incrimination Both the Fifth Amendment to the U.S. Constitution and Article 1, Section 15 of the California Constitution state no person shall be compelled to give evidence in a criminal cause against him or (More) AB 458 (Cook) PageH herself. The Fifth Amendment to the Federal Constitution provides that "No person . . . shall be compelled in any criminal case to be a witness against himself." Cal. Const., Art. I, 15 is practically identical. (For general discussions, see 1 McCormick 5th, 114 et seq.; 8 Wigmore (McNaughton Rev.) 2251, 2252; Black v. State Bar (1972) 7 C.3d 676, 685, 103 C.R. 288, 499 P.2d 968, citing the text; United States v. Mandujano (1976) 425 U.S. 564, 96 S.Ct. 1768, 1771, 48 L.Ed.2d 212, 216 [infringement of grand jury witness' privilege does not excuse perjury, citing Bryson v. United States (1969) 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264, infra, 379]; C.J.E.R., Judges Benchbook, Civil Proceedings: Discovery 4.17 et seq.; 13 Cal. L. Rev. 259; 30 Cal. L. Rev. 547; 43 Cal L. Rev. 886; 53 Cal. L. Rev. 611; 78 Harv. L. Rev. 426; 7 Hastings L. J. 72; 17 Stanf. L. Rev. 327; 12 U.C.L.A. L. Rev. 561; 1964 A.S. 376; 81 Am.Jur.2d (1992 ed.), Witnesses 80 et seq.; 21A Am.Jur.2d (1981 ed.), Criminal Law 701 et seq.; on privilege of accused serviceman under Uniform Code of Military Justice, see 10 U.S.C., 831(a).) In its origin at common law, the privilege was aimed at the abuse of arbitrary inquisition without charge, and meant that one should not be compelled to accuse oneself. As subsequently developed and almost universally applied today, the privilege protects an accused, i.e., a person properly charged, from being required to testify against himself or herself, and a witness from being required to give testimony which might subject him or her to criminal liability. Thus, despite the narrow constitutional language, which did not create but merely confirmed the common law protections, there are two privileges: (a) Defendant's (or accused's) privilege. The defendant in a criminal case need not testify at all. (See infra, 365 et seq.) (b) Witness' privilege. A witness in any proceeding, civil, criminal, or administrative, need not answer any question that would tend to subject the witness to a criminal prosecution. (See infra, 446 et seq.) (More) AB 458 (Cook) PageI (2) Scope of Privilege. The scope of the privilege is as follows: (a) It protects natural persons, not corporations or unincorporated associations. (See infra, 451 et seq.) (b) It protects against compulsory oral testimony and also against compulsory production of documents or personal property. (See 8 Wigmore (McNaughton Rev.) 2264; People v. Monreal (1997) 52 C.A.4th 670, 681, 60 C.R.2d 737 [relying on Minnesota v. Murphy (1984) 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409], infra, 497 [statements made by defendant to probation officer after conviction and before sentencing were not compelled and thus could be used to establish nature of prior offense]; infra, 384 et seq., 446 et seq.) (c) It precludes any comment on or inference from its claim. (See infra, 432 et seq.) ( 2 Witkin Cal. Evid. Witnesses 355 ) 3. Immunity Despite the Fifth Amendment right against self-incrimination, the prosecutor may grant the witness immunity from prosecution in order to compel testimony. "Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible with [the] values of the Fifth Amendment. Rather, they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify." (Kastigar v. United States (1972) 406 U.S. 441, 466, 447.) Soon after the privilege against compulsory self-incrimination became firmly established in law, it was recognized that the privilege did not apply when immunity or indemnity, in English usage, had been granted. (Levy, (1968) Origins of the Fifth Amendment 495.) (More) AB 458 (Cook) PageJ "The Fifth Amendment gives a witness an absolute right to resist interrogation, if the testimony sought would tend to incriminate him. A grant of immunity may strip the witness of the right to refuse to testify, but only if it is broad enough to eliminate all possibility that the testimony will in fact operate to incriminate him. It must put him precisely in the same position, vis-?-vis the government that has compelled his testimony, as he would have been in had he remained silent in reliance on the privilege." (Ullmann v. United States (1956) 350 U.S. 422; Kastigar at 466 (dis. opn. of Marshall, J.).) "The spectrum of protection available for statements implicating the Fifth Amendment range from the most protective, transactional immunity, which bars prosecution entirely, to the least protective, a limited use immunity which prohibits the prosecution from introducing the statements in the present case but contemplates the possibility of certain evidentiary use of the statements. Furthermore, 'transactional immunity' protects against later prosecutions related to matters about which the witness testified. It protects the witness from prosecution for any criminal transgression resulting from, for or on account of any transaction, matter or thing, included in the testimony." (Kastigar at 451.) After the United States Supreme Court ruled in Kastigar, the term "use-derivative use" gained favor as it was ruled to be co-extensive with the Fifth Amendment. Before 1964, it was widely held that only transactional immunity passed constitutional muster. (See Murphy v. Waterfront Commission (1964) 378 U.S. 52.) In 1970, the Federal Government enacted the Organized Criminal Control Act of 1970, which authorized the government to confer something less than full transactional immunity. This section was appealed and ultimately decided by the U.S. Supreme Court in Kastigar. The Court approved the statute holding transactional immunity was not required. "We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of (More) AB 458 (Cook) PageK immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of 'penalties affixed to . . . criminal acts.' (internal citation omitted). Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." (Kastigar at 453.) The Court's language in this case gave rise to the idea of "use-derivative use" immunity. 3. History of Transactional and Use-Derivative Use Immunity in California Penal Code Section 1324 was codified in 1953 and was not amended again until 1996. Under current law, when a witness in a felony proceeding invokes the Fifth Amendment privilege, refusing to answer a question or produce evidence on the grounds that doing so may be self-incriminating, the prosecutor may request the court to compel the witness to answer the question or produce the requested evidence. The court, after a hearing, shall compel compliance with the district attorney's request unless doing so would subject the witness to prosecution in another jurisdiction or would be contrary to the public interest. In 1968, the Legislature enacted Penal Code Section 1324.1 creating transactional immunity in misdemeanor cases and specified that even with a grant of immunity, the witness is not required to testify. (More) AB 458 (Cook) PageL Before 1996, felony prosecutions required a grant of transactional immunity for compelled testimony that was self-incriminating. Thus, if the person had been privileged not to answer or produce evidence but for the order compelling testimony, that person could not be prosecuted or penalized for any "fact or act" concerning the compelled testimony. Accordingly, transactional immunity shields a defendant from prosecution for any crime implicated by the compelled testimony. Although transactional immunity was broader than necessary to remain within the mandate of the Fifth Amendment, transactional immunity remained viable in California because the Legislature opted not to restrict the immunity granted to the constitutional minimum. (Dickey, Review of Selected 1996 California Legislation: Criminal Procedure: Compelled Testimony and Self-Incrimination: Is "Use and Derivative Use" Immunity Worth Adopting? (1997) 28 Pac. L.J. 722, 723; People v. Campbell (1982) 137 Cal.App.3rd 867, 872.) AB 988 (Hawkins), Chapter 302, Statutes of 1996, as originally introduced also eliminated the distinction in existing law between misdemeanor and felony prosecutions and clearly specified that prosecutors may grant either use or transactional immunity in felony cases. The elimination of Penal Code Section 1324.1 was amended out of AB 988 in the Senate Committee on Criminal Procedure. AB 988 was sponsored by the California District Attorneys Association. As explained by the author of AB 988: 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 an individual case rather than to give blanket immunity to a witness for any criminal offense implicated by the testimony he or she gives. However, the federal court system and many states permit prosecutors to obtain either (More) AB 458 (Cook) PageM transactional immunity or use immunity for witnesses who must be compelled to testify. Transactional immunity provides hostile witnesses with an overbroad protection against similar 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. According to the Senate Committee on Criminal Procedure analysis of AB 988, opponents to that bill contended the right against self-incrimination was too important to dilute where only a misdemeanor is at issue and the amendment eliminating transactional immunity in misdemeanor cases was removed from AB 988. The remaining provision, signed into law, authorized prosecutors to grant either use or transactional immunity in felony cases. (More) 4. Compelling Testimony in a Misdemeanor Case As noted above, existing law permits the compelling of testimony in felony cases when a witness has asserted a privilege and provides for immunity from prosecution because of the testimony given. In misdemeanor cases, the witness may agree to testify and be offered immunity to do so but also may refuse to testify. This bill would allow a court to compel the testimony of a witness in a misdemeanor case. The court will first order the person to show cause for why they should not be required to testify or produce evidence. The court shall order the testimony to be given unless "it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction." Thus, as is the case in a felony, the presumption is that the court will order the testimony unless the findings are met. If the testimony that is compelled and the person claimed that his or her testimony was privileged then any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminal case. However, a person can be prosecuted for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing or failing to produce, evidence in accordance with the order compelling the testimony or evidence. The issue raised with AB 988 (Hawkins) in 1996 still exists today: Is it appropriate to compel testimony over the assertion of a privilege in a misdemeanor case? Existing law allows a person to agree to waive his or her privilege and accept immunity but does not require that testimony; thus, this bill is contemplating cases where a person has chosen not to waive their privilege in exchange for immunity. The sponsor argues that this bill is necessary because: Over the years recalcitrant witnesses are prevalent in cases involving gang violence, family violence, and other crimes where witnesses may be subject to coercion or intimidation. (More) AB 458 (Cook) PageO Because of inadequacies in the law, it has become more difficult to prove misdemeanor cases than to prove a felony violation. SHOULD A PERSON BE COMPELLED TO TESTIFY IN CASES OF INTIMIDATION? SHOULD A PERSON BE COMPELLED TO TESTIFY WHEN THEY ARE INVOKING A PRIVILEGE? SHOULD THE COURT, AT THE REQUEST OF THE PROSECUTOR, COMPEL THE TESTIMONY OF A WITNESS IN A MISDEMEANOR CASE, EVEN IF THAT PERSON IS ASSERTING A PRIVILEGE NOT TO TESTIFY? ***************