BILL ANALYSIS
SENATE RULES COMMITTEE AB 988
Office of Senate Floor Analyses
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THIRD READING
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Bill No: AB 988
Author: Hawkins (R)
Amended: 7/1/96 in Senate
Vote: 21
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SENATE CRIMINAL PROCEDURE COMMITTEE: 4-2, 6/11/96
AYES: Johnson, Kopp, Polanco, Boatwright
NOES: Watson, Marks
SENATE FLOOR: 32-3, 6/24/96
AYES: Ayala, Beverly, Boatwright, Calderon, Costa, Craven,
Dills, Hayden, Hughes, Hurtt, Johannessen, Johnson,
Johnston, Kelley, Killea, Kopp, Leonard, Leslie, Lewis,
Lockyer, Maddy, Mello, Monteith, Mountjoy, O'Connell,
Petris, Polanco, Rogers, Russell, Solis, Thompson, Wright
NOES: Marks, Peace, Watson
NOT VOTING: Alquist, Greene, Haynes, Rosenthal, Sher
ASSEMBLY FLOOR: 53-18, 1/29/96 - See last page for vote
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SUBJECT: Criminal procedure
SOURCE: California District Attorneys Association
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DIGEST: This bill provides that a person who is ordered
to testify after objecting because the testimony may be
self-incriminating be prosecuted so long as the testimony
is not used against the person in the criminal case.
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Senate Floor Amendments of 6/27/96 delete language
repealing Section 1324.1 of the Penal Code.
ANALYSIS: Existing law provides that 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 a matter that may tend to incriminate
them. (Evidence Code section 940)
Under existing law, 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/she, that person cannot
generally be compelled to testify in court absent a
complete grant of immunity from prosecution for any act
regarding which he/she was required to testify
(transactional immunity). (Penal Code section 1324)
This bill instead adopts a modified federal approach
whereby a witness who is so compelled can be prosecuted for
acts regarding which he or she was required to testify,
provided that the prosecution may not use the witness'
testimony or any information directly or indirectly derived
from such testimony against the witness in the criminal
prosecution (use immunity). Federal law does not
statutorily provide for transactional immunity.
This bill provides that the district attorney, or any other
prosecuting agency, may request an order granting either
use immunity or transactional immunity for a witness
compelled to give testimony or produce evidence.
The purpose of this section of the bill is to allow a
narrower immunity to be granted to a witness who is
compelled to testify so that the person may be prosecuted
where there is independent evidence of a crime.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No
Local: No
SUPPORT: (Verified 6/27/96)
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California District Attorneys Association (source)
California Attorney General's Office
Los Angeles County Municipal Court Judges Association
OPPOSITION: (Verified 6/27/96)
California Attorneys for Criminal Justice
American Civil Liberties Union
ARGUMENTS IN SUPPORT: According to the author's office,
this provision will permit prosecutors in California to
have the same options that are available for federal
prosecutors:
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 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.
ARGUMENTS IN OPPOSITION: While not a violation of the
Constitution, opponents assert that there are disadvantages
to use immunity. There is a risk that use immunity will
result in the diminution of the 5th Amendment right to be
free from self incrimination.
Additionally, opponents state that prosecutors or other law
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enforcement officials may obtain leads, names of witnesses,
or other information otherwise unavailable that will be
used to later prosecute the witness.
Opponents argue that a witness who suspected that his
compelled testimony was used to develop a lead would be
hard pressed to defend himself since the prosecutor alone
was in the position to trace the chains of information and
investigation that lead to the evidence in a criminal
prosecution.
ASSEMBLY FLOOR:
AYES: Ackerman, Aguiar, Alby, Alpert, Baca, Baldwin,
Battin, Baugh, Boland, Bordonaro, Bowen, Bowler, Brewer,
Brulte, Caldera, Cannella, Conroy, Cortese, Cunneen,
Davis, Firestone, Frusetta, Goldsmith, Granlund, Harvey,
Hauser, Hawkins, Hoge, House, Kaloogian, Katz, Knight,
Knowles, Knox, Kuykendall, Machado, Margett, McPherson,
Miller, Morrissey, Morrow, W. Murray, Olberg, Poochigian,
Rainey, Richter, Rogan, Setencich, Takasugi, Thompson,
Weggeland, Woods, Pringle
NOES: Archie-Hudson, Bates, Brown, Burton, Campbell,
Ducheny, Friedman, Hannigan, Isenberg, Kuehl, Lee,
Martinez, Mazzoni, McDonald, Napolitano, Sher, Speier,
Villaraigosa
NOT VOTING: Bustamante, Escutia, Figueroa, Gallegos, K.
Murray, Sweeney, Tucker, Vasconcellos
RJG:lm 7/1/96 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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