BILL ANALYSIS
AB 458
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Date of Hearing: April 28, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 458 (Cook) - As Introduced: February 24, 2009
As Proposed to be Amended in Committee
SUMMARY : Deletes from provisions of law related to the
granting of immunity in misdemeanor prosecutions the authority
of a witness to voluntarily testify but maintains provisions
requiring the type of immunity granted must be transactional in
nature, 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
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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 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
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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
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
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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 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
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on the witness." (Kastigar at 453.) The Court's language in
this case gave rise to the idea of "use-derivative use"
immunity.
3)Arguments in Support : None submitted
4)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."
5)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
Opposition
California Attorneys for Criminal Justice
AB 458
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Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744