BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 458 (Cook)
As Amended April 29, 2009
Hearing date: June 9, 2009
Penal Code
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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.
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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
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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
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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
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<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).)
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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
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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
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<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).
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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
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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.)
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(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.)
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"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
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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.
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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
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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.
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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.
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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?
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