BILL ANALYSIS
AB 458
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Date of Hearing: April 14, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 458 (Cook) - As Introduced: February 24, 2009
SUMMARY : Extends procedures related to immunity in felony
criminal prosecutions to all criminal cases and eliminates the
immunity procedures for misdemeanor cases, as specified.
EXISTING LAW :
1)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
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testimony or produce evidence. (Penal Code Section 1324.)
2)States 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 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 Section 1324.1.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Many witnesses
in criminal cases would rather not testify. They might fear
retaliation, embarrassment, or exposure to their own criminal
liability. Recalcitrant witnesses are prevalent in cases
involving gang violence, family violence, and other crimes
where witnesses may be subject to coercion or 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 a grant
of immunity. The power to grant immunity lies with the
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prosecution. In felony cases, immunity is granted by under
California Penal Code Section 1324. A witness who receives
immunity under this section cannot refuse to accept it. In
misdemeanor cases, PC 1324.1 requires that the witness agree
to immunity. The need for agreement allows a misdemeanor
witness to refuse immunity. It becomes more difficult to
prove misdemeanor cases than to prove a felony violation.
This bill would make the process for granting immunity uniform
for all crimes."
2)Immunity and 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 herself. However,
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 5th 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 vs. 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.]
"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 if
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 vs. 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
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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 vs. 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
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.
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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.
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
vs. 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:
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"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."
The Senate Committee on Criminal Procedure analysis of AB 988
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.
4)Concerns with Use and Derivative Use Immunity : Although the
United States Supreme Court expressed approval for
use-derivative use immunity, objections remain that it does
not allow for sufficient protection against a Fifth Amendment
violation.
"Although use-derivative use immunity is constitutional, it is
not without its share of controversy. Many people are not
persuaded that use and derivative use immunity provides a
witness with protection commensurate with the Fifth Amendment.
For example, Justice Marshall, in his dissent in Kastigar,
argued that use and derivative use immunity was inadequate to
meet the requirements of the Fifth Amendment privilege. He
emphasized the slight burden placed on the prosecutor in
proving that evidence employed in the prosecution of the
witness was obtained independently of the compelled testimony.
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According to Marshall, the nature of the investigatory
process placed information concerning the origin of the
evidence solely within the knowledge of the prosecutor. Thus,
Justice Marshall asserted that the prosecution would easily
meet its burden of proof because the prosecution's monopoly of
knowledge regarding the investigatory process precluded the
defendant from introducing contrary evidence.
"Moreover, Marshall asserted that a prosecutor may not even know
about the derivative use of testimony; investigators could use
the testimony to gather further evidence against the witness
without the prosecutor's knowledge. Therefore, the allocation
of the burden of proof on the prosecution does little to
insure the witness's/defendant's Fifth Amendment privilege.
Thus, the possibility exists that the prosecution could use
privileged testimony to find 'independent' evidence and
subsequently prosecute a witness.
"Commentators have expressed additional concerns about use and
derivative use immunity. For example, the prosecutor may base
his or her decision to prosecute a witness upon the witness's
testimony. Moreover, the possibility exists that privileged
testimony may be used by the prosecutor to shape the
prosecutor's strategy without using the evidence in an
evidentiary manner. The monopoly that the government holds
over its investigatory information amplifies these concerns.
Thus, some commentators argue that a defendant is not left in
the same position had the defendant not been compelled to
testify.
"Although use and derivative use is constitutional, it affords
more opportunity for abuse than transactional immunity, which
may compromise the Fifth Amendment privilege against
self-incrimination. Transactional immunity prohibits the
prosecution of a witness for any crime implicated by the
testimony. Thus, abusing a witness's testimony is impossible
because the defendant is immune from prosecution for all
crimes related to the compelled testimony.
"Conversely, use and derivative use immunity provides for the
prosecution of the witness, if the prosecution proves the
evidence used in prosecuting the witness is obtained
independently of the testimony. Thus, though arguably
unlikely, [AB 988] makes it possible to prosecute a witness
with evidence derived from the witness's testimony provided
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that the individuals involved in prosecuting the witness can
adequately fabricate a story and "prove" that the evidence was
obtained independently. [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, 728-729.]
If a person is provided less protection, he or she may be
inclined to risk a jail sentence for contempt or provide only
superficial information.
5)Arguments in Support : None
6)Arguments in Opposition : According to the California
Attorneys for Criminal Justice , "AB 458 eliminates Penal Code
Section 1324.1 in misdemeanor cases thereby exposing both
witnesses and victims who may be called upon to testify with
greater punishment than the alleged criminal against whom they
are called to testify. This inverted result is perilous to
both witnesses and victims alike. The repeal of Penal Code
Section 1324.1would bean unseen force against criminal
justice, which requires scrupulous observance of the 5th
Amendment's Self-Incrimination Clause by both prosecution and
defenses. The proposed repeal of Penal Code Section 1324.1
would needlessly diminish the truth finding process and
protract litigation that would otherwise be settled by
operation of sound law. Therefore, AB 458 represents unwise
and improvident public policy. Improvident, because the
repeal of Penal 1324.1 would in practical terms eliminate the
realistic possibility of granting immunity to victims or
witnesses in this lower set of crimes."
7)Prior Legislation : AB 988 (Hawkins), Chapter 302, Statutes of
1996, expressly provided that this provision does not 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. AB 988 originally reflected the proposed amendments
in this bill and those provisions were removed in the Senate
Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
AB 458
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Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744