State v. the Honorable Rene Gonzalez et al (2/14/92) ap-1204
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
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Courts, 303 K Street, Anchorage, Alaska
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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4063
Petitioner, ) Trial Court Nos. 3AN-S91-693/94CR
)
v. ) O P I N I O N
)
THE HONORABLE RENE GONZALEZ, )
JEFFREY S. DeGRASSE, )
CARL JAHNKE-LELAND, )
AND JILL JAHNKE-LELAND, ) [No. 1204 - February 14, 1992]
)
Respondents. )
_______________________________)
Original Application for Relief from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Rene J.
Gonzalez, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special Prose-
cutions and Appeals, Anchorage, and Charles
E. Cole, Attorney General, Juneau, for
Petitioner. Margi Mock, Ray Brown, Assistant
Public Defenders, and John B. Salemi, Public
Defender, Anchorage, for Respondent Jeffrey
S. DeGrasse. Michael A. Thompson, Juneau,
for Respondent Carl Jahnke-Leland. Jeffrey
F. Sauer, Juneau, for Respondent Jill Jahnke-
Leland.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
In this case, we review a superior court order deciding
that Alaska's witness immunity statute violates the Alaska
Constitution's privilege against self-incrimination. We affirm
the superior court's order.
PROCEDURAL BACKGROUND
Jill Jahnke-Leland, Carl Jahnke-Leland, Peter H.
Leland, and Jeffrey DeGrasse were jointly charged with first-
degree murder, attempted first-degree murder, and related
offenses stemming from a shooting incident near Ketchikan. The
superior court ordered separate trials for the defendants. Jill
Jahnke-Leland was tried first. The jury acquitted her of murder
and attempted murder, but convicted on the lesser-included
offenses of manslaughter and assault.
Peter Leland and Jeffrey DeGrasse elected to proceed
jointly and were tried next. Their jury acquitted them of first-
degree murder and attempted murder but deadlocked as to lesser-
included offenses and the remaining charges. The superior court
declared a mistrial and scheduled a retrial on the unresolved
charges.
Prior to the retrial, the state issued a subpoena for
Jill Jahnke-Leland to appear as a prosecution witness against
Leland and DeGrasse. The state sought to compel Jahnke-Leland's
testimony by offering her immunity in compliance with Alaska's
witness immunity statute, AS 12.50.101(a), which assures that "no
testimony or other information compelled under . . . [an] order
[of immunity], or information directly or indirectly derived from
that testimony or other information, may be used against the
witness in a criminal case . . . ."
Jahnke-Leland moved to quash the subpoena. Asserting
her constitutional privilege against compulsory self-
incrimination, Jahnke-Leland claimed that the statutory
prohibition against use of her testimony or information derived
therefrom -- "use and derivative use immunity" -- was
constitutionally deficient and that she could adequately be
protected against self-incrimination only by a broader grant of
immunity categorically precluding her from being prosecuted for
any transaction as to which she was compelled to testify --
"transactional immunity."
Superior Court Judge Rene J. Gonzalez granted Jahnke-
Leland's motion to quash the subpoena. Judge Gonzalez found the
witness immunity statute's provision for use and derivative use
immunity to be insufficient and concluded that "only
transactional immunity is adequate to protect an individual's
right against self-incrimination under Article I, 9 of the
Alaska Constitution."
The state then applied to this court for review of
Judge Gonzalez's order.1 Because the case presents an important
legal issue of first impression, the immediate resolution of
which would further public interest, we granted the state's
application and directed briefing on the merits.2
FEDERAL LAW
The issue presented in this case is whether the Alaska
Constitution will permit the state to compel potentially self-
incriminatory testimony from a witness by an offer of use and
derivative use immunity, or, conversely, whether a broader form
of immunity -- transactional immunity -- is required.3 Although
this issue is one of state constitutional law, decisions
construing the federal constitution's privilege against self-
incrimination provide the backdrop against which the state
constitutional issue must be decided.
The fifth amendment to the United States Constitution
guarantees that "[n]o person . . . shall be compelled in any
criminal case to be a witness against himself . . . ." The
importance of this constitutional privilege would be difficult to
exaggerate: "[T]he American system of criminal prosecution is
accusatorial, not inquisitional, and . . . the Fifth Amendment
privilege is its essential mainstay." Malloy v. Hogan, 378 U.S.
1, 7 (1964). In Ullmann v. United States, 350 U.S. 422, 426-27
(1956), the Court described the privilege as "an important
advance in the development of our liberty -- `one of the great
landmarks in man's struggle to make himself civilized.'"
Viewed literally, the language of the privilege would
appear only to preclude compelling the accused in a criminal case
to testify. However, it is now well settled that the privilege:
can be asserted in any proceeding, civil or
criminal, administrative or judicial,
investigatory or adjudicatory; and it
protects against any disclosures which the
witness reasonably believes could be used in
a criminal prosecution or could lead to other
evidence that might be so used.
Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (footnotes
omitted). Likewise, it is settled that the privilege extends to
a party or a witness alike. Malloy v. Hogan, 378 U.S. at 11.
Although the privilege against self-incrimination
stands as an absolute bar against compelled testimony, it does
not attach in all situations. By its own terms, it cannot be
claimed when a witness has no reasonable grounds to fear that an
answer might be incriminatory. See Hoffman v. United States, 341
U.S. 479, 486-87 (1951); see also McConkey v. State, 504 P.2d
823, 826 (Alaska 1972). This principle has led to the view that
a witness may be compelled to testify in exchange for immunity
from future prosecution.
The first immunity case to reach the Supreme Court was
Counselman v. Hitchcock, 142 U.S. 547 (1892). In Counselman, the
Court considered the validity of a federal immunity statute
authorizing the testimony of a witness to be compelled, provided
that no "evidence obtained from a party or witness by means of a
judicial proceeding . . . shall be given in evidence, or in any
manner used against him . . . in any court of the United States."
Id. at 560.
The Court found the challenged statute deficient
because it protected the witness only from direct use of
compelled testimony, and not from use of the fruits thereof. Id.
at 586.
The Court condemned the statute in broad terms:
We are clearly of opinion that no
statute which leaves the party or witness
subject to prosecution after he answers the
criminating question put to him, can have the
effect of supplanting the privilege conferred
by the Constitution of the United States. . .
. In view of the constitutional provision, a
statutory enactment, to be valid, must afford
absolute immunity against future prosecution
for the offense to which the question
relates.
Id. at 585-86.
Soon after Counselman was decided, Congress enacted an
immunity statute authorizing the testimony of witnesses to be
compelled upon a grant of transactional immunity. In Brown v.
Walker, 161 U.S. 591 (1896), the Supreme Court reviewed the
transactional immunity statute.
The issue in Brown was whether any form of immunity
could displace the constitutional guarantee against compelling a
witness to provide incriminatory testimony. The Court observed
that its earlier ruling in Counselman v. Hitchcock raised the
inference that, if a "statute does afford . . . [absolute]
immunity against future prosecution, the witness will be
compellable to testify." Brown v. Walker, 161 U.S. at 594. The
Court found this inference supported by prior cases addressing
the privilege against self-incrimination, which in its view
established that "if the testimony sought cannot possibly be used
as a basis for, or in aid of, a criminal prosecution against the
witness, the rule [against compulsory self-incrimination] ceases
to apply, its object being to protect the witness himself and no
one else . . . ." Id. at 597. Finding that the transactional
immunity statute amounted to a virtual grant of amnesty from
future prosecution, the Court concluded:
While the constitutional provision in
question is justly regarded as one of the
most valuable prerogatives of the citizen,
its object is fully accomplished by the
statutory immunity, and we are, therefore, of
opinion that the witness was compellable to
answer . . . .
Id. at 610.
Notably, four justices in Brown v. Walker dissented
from the majority opinion, maintaining that, under the fifth
amendment, even a broad grant of transactional immunity did not
justify the government in compelling potentially self-
incriminatory testimony from a reluctant witness. Id. at 610-28
(Shiras, J., dissenting), 628-38 (Field, J., dissenting).
Sixty years later, in Ullmann v. United States, 350
U.S. 422 (1956), the United States Supreme Court was asked to
reconsider the decision in Brown v. Walker and to adopt the views
of the dissenting justices. At issue in Ullmann was the federal
Immunity Act of 1954, which provided for transactional immunity
in much the same language as the 1893 act challenged in Brown v.
Walker. See Ullmann, 350 U.S. at 423-24. In refusing to alter
its prior holding, the Ullmann Court, in an opinion authored by
Justice Frankfurter, emphasized that
the Court's holding in Brown v. Walker has
never been challenged; the case and the
doctrine it announced have consistently and
without question been treated as definitive
by this Court . . . . The 1893 statute has
become part of our constitutional fabric and
has been included "in substantially the same
terms, in virtually all of the major
regulatory enactments of the federal
government."
Ullmann, 350 U.S. at 437-38 (citations omitted).
Reaffirming Brown v. Walker, the Court in Ullmann reiterated the
view that transactional immunity afforded protections equivalent
to those of the fifth amendment:
The privilege against self-incrimination is a
specific provision of which it is peculiarly
true that "a page of history is worth a
volume of logic." For the history of the
privilege establishes not only that it is not
to be interpreted literally, but also that
its sole concern is, as its name indicates,
with the danger to a witness forced to give
testimony leading to the infliction of
"penalties affixed to the criminal acts . . .
." . . . Immunity displaces the danger.
Once the reason for the privilege ceases, the
privilege ceases.
Ullmann, 350 U.S. at 438-39 (citations and footnote omitted).
By emphasizing that the doctrine of Brown v. Walker had
"consistently and without question been treated as definitive"
and by characterizing the federal immunity act, with its
provision for transactional immunity, as "part of our
constitutional fabric," 350 U.S. at 437-38, Ullmann reinforced
the widespread belief -- originally fostered by the Court's
strong language in Counselman v. Hitchcock -- that only
transactional immunity would meet the requirement of offering
protections equivalent to those assured by the fifth amendment.
Not until eight years after Ullmann did the Supreme
Court plant the first seeds of doubt as to whether transactional
immunity was constitutionally compelled. In Malloy v. Hogan, 378
U.S. 1 (1964), the Court extended the fifth amendment's privilege
against self-incrimination to the states via the due process
clause of the fourteenth amendment. This ruling necessitated a
reevaluation of earlier decisions holding that, to be effective,
a grant of immunity needed only to protect a witness against
prosecution in the jurisdiction where the testimony was sought.
See, e.g., Feldman v. United States, 322 U.S. 487 (1944); United
States v. Murdock, 284 U.S. 141 (1931).
In Murphy v. Waterfront Commission of New York Harbor,
378 U.S. 52 (1964) -- a companion case to Malloy v. Hogan -- the
Court took up this issue. After a thorough review of its past
decisions and relevant decisions of the English courts, the Court
concluded
that there is no continuing legal vitality
to, or historical justification for, the rule
that one jurisdiction within our federal
structure may compel a witness to give
testimony which could be used to convict him
of the crime in another jurisdiction.
Murphy, 378 U.S. at 77. The Court thus held
that the constitutional privilege against
self-incrimination protects a state witness
against incrimination under federal as well
as state law and a federal witness against
incrimination under state as well as federal
law.
Id. at 77-78.
This left the Court with a dilemma: since under the
supremacy clause of the United States Constitution states had no
authority to preclude federal prosecution by a promise of
immunity, it was unclear whether state prosecutors would ever be
capable of making a grant of immunity "so broad as to have the
same extent in scope and effect" as the fifth amendment.
Counselman, 142 U.S. at 585.
The Murphy Court resolved this dilemma by adopting an
exclusionary rule for federal cases involving defendants who had
been granted immunity under state law:
[W]e hold the constitutional rule to be that
a state witness may not be compelled to give
testimony which may be incriminating under
federal law unless the compelled testimony
and its fruits cannot be used in any manner
by federal officials in connection with a
criminal prosecution against him. We
conclude, moreover, that in order to
implement this constitutional rule and
accommodate the interests of the State and
Federal Governments in investigating and
prosecuting crime, the Federal Government
must be prohibited from making any such use
of compelled testimony and its fruits. This
exclusionary rule, while permitting the
states to secure information necessary for
effective law enforcement, leaves the witness
and the Federal Government in substantially
the same position as if the witness had
claimed his privilege in the absence of a
state grant of immunity.
Murphy, 378 U.S. at 79 (footnote omitted) (emphasis added).
In a concurring opinion, Justice White seized on the
Court's adoption of use and derivative use immunity for dual
jurisdiction cases as an opportunity to advance the idea that
transactional immunity would not be constitutionally required
even in single jurisdiction cases. Id. at 92-107. In the years
following Murphy v. Waterfront, Justice White's concept of use
and derivative use immunity gained increasing notice.
In Piccirillo v. New York, 400 U.S. 548 (1971), the
Supreme Court granted certiorari to consider the validity of a
New York statute that appeared to provide only for use and
derivative use immunity. While the case awaited Supreme Court
consideration, however, the New York Court of Appeals, in a
separate case, construed the statute to require transactional
immunity. On this basis, the Supreme Court dismissed the writ of
certiorari as improvidently granted. The decision by the
majority of the court to dismiss in Piccirillo, however, prompted
Justice Brennan to write a dissenting opinion in which he argued
that transactional immunity was constitutionally compelled and
that use and derivative use immunity could not afford protections
that were coextensive with those set out in the fifth amendment.
Id. at 561-73.
The same year the Court granted certiorari in
Piccirillo, Congress enacted a revised immunity statute providing
for use and derivative use immunity, rather than transactional
immunity. In Kastigar v. United States, 406 U.S. 441 (1972), the
Supreme Court upheld the statute, adopting the views expressed by
Justice White in his separate concurrence in Murphy. The
majority of the Court in Kastigar dismissed as dicta language
from Counselman v. Hitchcock and subsequent cases suggesting that
transactional immunity was the only form of immunity offering
protections coextensive with those set out in the fifth
amendment. Kastigar, 406 U.S. at 454-55. Kastigar identified
the true basis for Counselman's holding to be merely that a
statute protecting only against direct use of compelled
testimony, without also prohibiting use of information derived
from that testimony, was inadequate. Id.
The Court went on to note that use and derivative use
immunity had been described in Murphy v. Waterfront Commission as
substantially equivalent to the fifth amendment privilege. The
Court found no basis for declining to extend Murphy's holding to
the single jurisdiction context:
The Murphy Court was concerned solely with
the danger of incrimination under federal
law, and held that immunity from use and
derivative use was sufficient to displace the
danger. This protection coextensive with the
privilege is the degree of protection that
the Constitution requires, and is all that
the Constitution requires even against the
jurisdiction compelling testimony by granting
immunity.
Kastigar, 406 U.S. at 458-59.
The Court then went on to consider the practical
problem of how a court might decide whether a prosecution was
based, directly or indirectly, on previously compelled testimony.
Again, the Court relied on Murphy, which placed on the government
the burden of proving that its evidence was not tainted and had
an independent, legitimate source. Kastigar emphasized that:
[T]his burden of proof, which we reaffirm as
appropriate, is not limited to a negation of
taint; rather, it imposes on the prosecution
the affirmative duty to prove that the
evidence it proposes to use is derived from a
legitimate source wholly independent of the
compelled testimony.
Kastigar, 406 U.S. at 460-61.
The majority opinion in Kastigar engendered two
vigorous dissents, one from Justice Douglas and one from Justice
Marshall; both drew heavily on the dissent written in Piccirillo
v. New York by Justice Brennan, who did not participate in
Kastigar. Justice Douglas decried the Kastigar majority's
apparent view that Murphy v. Waterfront Commission overruled
Counselman v. Hitchcock sub silentio. Kastigar, 406 U.S. at 463.
He concluded:
When we allow the prosecution to offer
only "use" immunity we allow it to grant far
less than it has taken away. For while the
precise testimony that is compelled may not
be used, leads from that testimony may be
pursued and used to convict the witness. My
view is that the framers put it beyond the
power of Congress to compel anyone to confess
his crimes. The self-incrimination clause
creates, as I have said before, "the
federally protected right of silence," making
it unconstitutional to use a law to "pry open
one's lips and make him a witness against
himself." That is indeed one of the chief
procedural guarantees in our accusatorial
system. Government acts in an ignoble way
when it stoops to the end which we authorize
today.
Kastigar, 406 U.S. at 466-67 (footnote and citation omitted).
In his separate dissent, Justice Marshall expressed
even greater skepticism as to whether use and derivative use
immunity could actually be coextensive with the fifth amendment
or with transactional immunity:
I do not see how it can suffice merely
to put the burden of proof on the government.
First, contrary to the Court's assertion, the
Court's rule does leave the witness
"dependent for the preservation of his rights
upon the integrity and good faith of the
prosecuting authorities." For the
information relevant to the question of taint
is uniquely within the knowledge of the
prosecuting authorities. They alone are in a
position to trace the chains of information
and investigation that lead to the evidence
to be used in a criminal prosecution. A
witness who suspects that his compelled
testimony was used to develop a lead will be
hard pressed indeed to ferret out the
evidence necessary to prove it. And of
course it is no answer to say that he need
not prove it, for though the Court puts the
burden of proof on the government, the
government will have no difficulty in meeting
its burden by mere assertion if the witness
produces no contrary evidence. The good
faith of the prosecuting authorities is thus
the sole safeguard of the witness' rights.
Second, even their good faith is not a
sufficient safeguard. For the paths of
information through the investigative
bureaucracy may well be long and winding, and
even a prosecutor acting in the best of faith
cannot be certain that somewhere in the
depths of his investigative apparatus, often
including hundreds of employees, there was
not some prohibitive use of the compelled
testimony. The Court today sets out a loose
net to trap tainted evidence and prevent its
use against the witness, but it accepts an
intolerably great risk that tainted evidence
will in fact slip through that net.
Kastigar, 406 U.S. at 469 (citations omitted).
Kastigar's declaration that the fifth amendment demands
no more than a grant of use and derivative use immunity to
supplant the privilege against self-incrimination remains
unaltered to this day. In the present case, Jill Jahnke-Leland
has no valid claim of privilege under the United States
Constitution. Kastigar establishes that the state's offer of use
and derivative use immunity is the effective equivalent of Jahnke-
Leland's fifth amendment privilege.
ALASKA LAW
Recognizing that no valid claim would exist under the
fifth amendment, however, Jahnke-Leland has asserted her
privilege under article I, 9 of the Alaska Constitution. We
must turn, accordingly, to the Alaska Constitution. Article I,
9 commands that "[n]o person shall be compelled in any criminal
proceeding to be a witness against himself." The Alaska Supreme
Court has never expressly determined whether this provision can
be displaced by use and derivative use immunity, or whether
transactional immunity is instead required. On two occasions,
the court has been presented with the issue but has declined to
decide it.
In Surina v. Buckalew, 629 P.2d 969 (Alaska 1981), the
court determined that the prosecution had inherent authority to
confer immunity on a reluctant witness, even in the absence of
statutory authorization. Id. at 979. The court expressed the
general view that Rule 732 of the Uniform Rules of Criminal
Procedure "provides appropriate guidance concerning the exercise
of" the state's authority to grant immunity. While Uniform Rule
732(b) calls for transactional rather than use and derivative use
immunity, the supreme court stopped short of endorsing that
standard. Id. at 979 n.21. Instead, noting that the parties had
raised no issue as to the scope of immunity that would suffice,
the court indicated that it would "leave for another day the
question of what the Alaska Constitution requires in this
respect." Id. at 980.
In State v. Serdahely, 635 P.2d 1182 (Alaska 1981), the
Alaska Supreme Court was again asked to determine the scope of
immunity that would be necessary to compel a reluctant witness to
testify. Instead of deciding the issue on constitutional
grounds, however, the court invoked its supervisory powers and
opted, summarily, for transactional immunity:
This court adopts pursuant to its
supervisory powers as a rule of practice the
provisions of Rule 732 of the Uniform Rules
of Criminal Procedure including subsection
(b) relating to the nature and scope of
immunity for the reasons expressed in the
commentary to the rule.
Id. at 1182.
In response to the Alaska Supreme Court's apparent
deference to the legislature,4 the Alaska legislature, in 1982,
adopted Alaska's witness immunity statute, AS 12.50.101,
specifying use and derivative use as the applicable standard of
immunity in Alaska. In contrast to the Alaska Supreme Court's
preference for the policies favoring transactional immunity, as
expressed in the commentary to Uniform Criminal Rule 732(b), the
legislature indicated its preference for policies favoring use
and derivative use immunity and stated its belief that such
immunity would pass muster under the Alaska Constitution. See
House Journal Supplement No. 63 at 12-16, 1982 House Journal
2356.
Given the supreme court's reluctance in Surina and
Serdahely to decide the scope of immunity required by the Alaska
Constitution, the validity of Alaska's witness immunity statute
remains an open question. To answer this question, we must
decide whether article I, 9 of the Alaska Constitution embodies
more stringent protections than are available under the fifth
amendment to the United States Constitution.
While the United States Constitution imposes the
minimal constitutional standards that we must enforce,
we are free, and we are under a duty, to
develop additional constitutional rights and
privileges under our Alaska Constitution if
we find such fundamental rights and
privileges to be within the intention and
spirit of our local constitutional language
and to be necessary for the kind of civilized
life and ordered liberty which is at the core
of our constitutional heritage.
Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970). It is
the responsibility of Alaska courts to "depart whenever necessary
from constitutional interpretations enunciated by the United
States Supreme Court and to develop rights and privileges under
the Alaska constitution in accordance with our own unique legal
background." Scott v. State, 519 P.2d 774, 783 (Alaska 1974).
The starting point for interpreting any constitutional
provision is the original understanding of those who drafted it.
"[T]he fundamental principle in construing a constitutional
provision is to give effect to the intention of the framers and
the people adopting it." HGEA v. County of Maui, 576 P.2d 1029,
1039 (Haw. 1978).
The Alaska Constitution's guarantee that "[n]o person
shall be compelled in any criminal proceeding to be a witness
against himself" is virtually identical to the corresponding
guarantee in the fifth amendment to the United States
Constitution. Biele v. State, 371 P.2d 811, 813 n.6 (Alaska
1962). From this similarity in language, a fair inference arises
that the drafters of the Alaska Constitution intended article I,
9 to guarantee protections commensurate with those then
available under the fifth amendment. Our inquiry must thus focus
on the manner in which the fifth amendment was interpreted and
understood when the Alaska Constitution was enacted:
This is but another application of the
familiar rule that where one State adopts the
laws of another, it is also presumed to adopt
the known and settled construction of those
laws by the courts of the state from which
they are taken.
Brown v. Walker, 161 U.S. at 600.
Alaska's constitutional convention adopted the Alaska
Constitution on February 5, 1956; the people of Alaska ratified
it on April 24, 1956. The drafting and ratification of Alaska's
privilege was thus roughly contemporaneous with the United States
Supreme Court's opinion in Ullmann v. United States, in which
Justice Frankfurter characterized the federal transactional
immunity statute as having become "part of our constitutional
fabric." Ullmann, 350 U.S. at 438. The universally accepted
view at that time was that, in keeping with Counselman v.
Hitchcock and Brown v. Walker, only transactional immunity could
be deemed coextensive with the protections of the fifth
amendment.5 As we have previously pointed out, the first serious
doubts concerning the constitutional status of transactional
immunity did not arise until the Supreme Court's 1964 decision in
Murphy v. Waterfront Commission -- fully eight years after the
Alaska Constitution was enacted, and more than five years after
the constitution formally took effect with the proclamation of
statehood on January 3, 1959.
The universal acceptance of transactional immunity in
1956 is convincing evidence that, by selecting language for
Alaska's privilege against self-incrimination that was identical
to the language of the federal constitutional privilege, the
drafters of our constitution contemplated that article I, 9
would also be read to require transactional immunity.
Under circumstances almost identical to those in
Alaska, the Supreme Court of Hawaii concluded that the drafters
of its constitution intended to require transactional immunity
when they wrote the Hawaii Constitution. See State v. Miyasaki,
614 P.2d 915 (Haw. 1980). The Hawaii Constitution was drafted in
1950, several years before Alaska's constitution was written.
The Alaska and Hawaii constitutions took effect
contemporaneously, with the proclamation of statehood in 1959.
Article I, 10 of the Hawaii Constitution -- like article I, 9
of the Alaska Constitution -- embodies the privilege against self-
incrimination in language virtually identical to that of the
fifth amendment. See Miyasaki, 614 P.2d at 917 n.5. In
determining the intent of the drafters of article I, 10, the
Hawaii Supreme Court stated:
That transactional immunity had been
"part of our constitutional fabric" from 1893
could not have been lost to a convention that
included lawyers among its members. Nor can
we conclude the sanguine statements about the
Fifth Amendment and interpretations strongly
favoring the privilege may have escaped the
members of a constitutional convention
convened in 1950. Transactional immunity is
undoubtedly part of the "fabric" of Article
I, 10 notwithstanding the tear in the
"fabric" of the federal constitution caused
by Kastigar . . . .
Miyasaki, 614 P.2d at 922-23 (footnotes omitted).
Just as Hawaii's Supreme Court found it unlikely that
the members of its constitutional convention were unaware of
federal law, so we find it inconceivable that members of Alaska's
constitutional convention could have ignored the fact that trans-
actional immunity was perceived as "part of our constitutional
fabric."6
Of course, our constitution is not static. We are not
inflexibly tied to the interpretation of the fifth amendment that
the drafters of article I, 9 intended to adopt:
We are not bound in expounding the
Alaska Constitution's Declaration of Rights
by the decisions of the United States Supreme
Court, past or future, which expound
identical or closely similar provisions of
the United States Constitution.
Roberts v. State, 458 P.2d 340, 342 (Alaska 1969). See also
Baker v. Fairbanks, 471 P.2d at 401-02.
Yet this does not mean that we should depart from the
understanding and intent of the drafters of the Alaska
Constitution whenever the United States Supreme Court changes its
course on corresponding provisions of the federal constitution.
To the contrary, while the Alaska Supreme Court has noted its
freedom and duty "to develop additional constitutional rights and
privileges under our Alaska Constitution," Baker v. Fairbanks,
471 P.2d at 402, it has exercised this freedom and duty only upon
finding "such fundamental rights and privileges to be within the
intention and spirit of our local constitutional language and to
be necessary for the kind of civilized life and ordered liberty
which is at the core of our constitutional heritage." Id.
(footnote omitted).
Our supreme court has also eschewed reflexive adherence
to changes at the federal constitutional level:
We are not bound to follow blindly a
federal constitutional construction of a
fundamental principle if we are convinced
that the result is based on unsound reason or
logic.
Scott v. State, 519 P.2d at 783. Blind adherence to federal
constitutional change is especially inappropriate "where
`unexpected' decisions from the [United States Supreme] Court
`have forced a serious reevaluation of . . . fundamentals.'"
State v. Miyasaki, 614 P.2d at 922 (quoting State v. Kaluna, 520
P.2d 51, 57 (Haw. 1974)).
After carefully considering the United States Supreme
Court's decision in Kastigar, the Hawaii Supreme Court has
declined to depart from the original intent of the drafters of
its privilege against self-incrimination. Similarly, the Supreme
Court of Massachusetts has refused to accept Kastigar's shift in
direction as an adequate basis for revising its views of the
Massachusetts constitution's privilege against self-
incrimination:
To assume that, because of the common source
of the principle articulated in each
Constitution, the two provisions must have
the same meaning would overturn the
interpretation of the Massachusetts
Constitution given with clarity and careful
consideration in Emery's Case, 107 Mass. 172
(1871). . . . Positive safeguards secured to
individuals by the Massachusetts
Constitution, yet not available under the
cognate provisions of the United States
Constitution, should not be thus
circumscribed.
Attorney General v. Colleton, 444 N.E.2d 915, 921 (Mass. 1982).
The United States Supreme Court's decisions
interpreting the fifth amendment do not decide the meaning of the
Alaska privilege, and similarity in language does not make the
United States Supreme Court the primary interpreter of article I,
9. See State v. Soriano, 684 P.2d 1220, 1222 (Or. App.) (in
banc), summarily aff'd, 693 P.2d 26 (Or. 1984). Departure from
the original intent of the drafters of article I, 9 requires
something more than a recent shift in federal constitutional
interpretation.
Yet the state has failed to provide any compelling, or
even cogent, reason for altering the original meaning of article
I, 9. The state argues only that, as a matter of social
policy, use and derivative use immunity is preferable to
transactional immunity, since it better accommodates the state's
undeniably legitimate interest in investigating and prosecuting
criminal activity. According to the state, scrupulous
application of use and derivative use immunity can protect the
rights of witnesses as effectively as both transactional immunity
and the constitutional privilege itself.
The state's position is essentially an argument based
on expediency. That the legislature may deem one course
desirable because it accommodates the state's interest by
facilitating prosecution does not justify departing from a
different course taken by our constitution to protect the rights
of Alaska citizens.7 As the Alaska Supreme Court has said:
The argument from expediency contains
inherent defects. If an individual right is
vested by the Constitution, the overriding
demands of governmental efficiency must be of
a compelling nature and must be identifiable
as flowing from some enumerated
constitutional power. To allow expediency to
be the basic principle would place the
individual constitutional right in a
secondary position, to be effectuated only if
it accorded with expediency.
This would negate our entire theory of
constitutional government. The American
Constitutional theory is that constitutions
are a restraining force against the abuse of
governmental power, not that individual
rights are a matter of governmental
sufferance.
Baker v. Fairbanks, 471 P.2d at 394 (footnote omitted).
The state's position in this case is flawed in other
significant respects. Any narrowing of the originally intended
meaning of Alaska's privilege against self-incrimination would
seem incompatible with prior decisions in which the Alaska
Supreme Court and this court have interpreted article I, 9 to
provide for broader protections than are available under the
fifth amendment. In Scott v. State, 519 P.2d at 783-85, the
Alaska Supreme Court interpreted article I, 9 to invalidate a
trial court order that required the defendant to disclose, in
advance of trial, details concerning potential alibi witnesses.
This interpretation was at odds with Williams v. Florida, 399
U.S. 78 (1970), in which the United States Supreme Court held
that such disclosure was not problematic under the fifth
amendment.
It is particularly noteworthy that the Supreme Court's
decision in Scott was motivated in large part by the Court's fear
that compelled disclosure of details concerning an alibi defense
might be used indirectly by the prosecution to the disadvantage
of the accused. Scott, 519 P.2d at 785. The fear of this type
of nontestimonial use of compelled testimony by the prosecution
is precisely what has generated the severest and most enduring
criticism of use and derivative use immunity. Cf. McCracken v.
Corey, 612 P.2d 990, 999-1001 (Alaska 1980) (Rabinowitz, J.,
concurring).
In Pinkerton v. State, 784 P.2d 671 (Alaska App. 1989),
this court construed article I, 9 of the Alaska Constitution to
require that limited target warnings be given to potential
defendants subpoenaed by the state to testify before the grand
jury. A similar requirement had been rejected as a matter of
federal constitutional law in United States v. Washington, 431
U.S. 181 (1977).
Beyond these cases construing Alaska's privilege
against self-incrimination more stringently than its federal
counterpart, several other decisions dealing with related rights
under the Alaska Constitution counsel strongly against a hasty
narrowing of article I, 9. In Breese v. Smith, 501 P.2d 159
(Alaska 1972), the supreme court interpreted article I, 1 of
the Alaska Constitution, which includes the guarantee "that all
persons have a natural right to life, liberty, the pursuit of
happiness, and the enjoyment of the rewards of their own
industry." Relying on this provision's affirmative grant of the
right to "liberty," the supreme court held that the state was
barred from regulating the hairstyle of a public school student,
absent compelling justification. Of the right to liberty, the
court said:
[T]he term "liberty" is an elusive concept,
incapable of definitive, comprehensive
explication. Yet at the core of this concept
is the notion of total personal immunity from
governmental control: the right "to be let
alone."
Id. at 168.
In several other cases, the Alaska Supreme Court has
considered article I, 22 of the Alaska Constitution, which
specifies that "[t]he right of the people to privacy is
recognized and shall not be infringed." Our constitutional right
to privacy finds no express counterpart in the federal
constitution and has thus served as the basis for extending
protections to Alaska citizens that are not extended under the
United States Constitution. See, e.g., State v. Glass, 583 P.2d
872 (Alaska 1978) (holding that the right to privacy requires
that a search warrant be obtained before police surreptitiously
engage in electronic recording of a conversation, even when one
of the parties to the conversation consents to the monitoring);
Ravin v. State, 537 P.2d 494 (Alaska 1975) (the right to privacy
precludes imposition of criminal sanctions for possession of
small quantities of marijuana for personal consumption in the
home).
The Alaska Constitution's unique concern with the
rights to liberty and privacy, and the Alaska Supreme Court's
vigilant enforcement of these rights, have a strong bearing on
the manner in which interpretation of Alaska's privilege against
self-incrimination should be approached. For it has long been
recognized that the privilege against self-incrimination
"reflects a complex of our fundamental values and aspirations."
Kastigar v. United States, 406 U.S. at 444. Among these
fundamental values is the protection of individual liberty and
privacy:
The privilege against self-incrimination
"registers an important advance in the
development of our liberty -- `one of the
great landmarks in man's struggle to make
himself civilized.'" It reflects many of our
fundamental values and most noble
aspirations: our unwillingness to subject
those suspected of crime to the cruel
trilemma of self-accusation, perjury or
contempt; our preference for an accusatorial
rather than an inquisitorial system of
criminal justice; our fear that self-
incriminating statements will be elicited by
inhumane treatment and abuses; our sense of
fair play which dictates "a fair state-
individual balance by requiring the
government to leave the individual alone
until good cause is shown for disturbing him
and by requiring the government in its
contest with the individual to shoulder the
entire load[;]" our respect for the
inviolability of the human personality and of
the right of each individual "to a private
enclave where he may lead a private life[;]"
our distrust of self-deprecatory statements;
and our realization that the privilege, while
sometimes "a shelter to the guilty," is often
"a protection to the innocent."
Murphy v. Waterfront Commission, 378 U.S. at 55 (citations
omitted) (emphasis added).
The foregoing cases, in our view, stand strongly
against narrowing article I, 9 of the Alaska Constitution to
permit use and derivative use immunity as a substitute for the
privilege against self-incrimination or transactional immunity.
These cases are bolstered by decisions from several other states.
Hawaii, Oregon, Massachusetts, and Mississippi have all declined
to follow Kastigar, construing the privilege against self-
incrimination contained in their state constitutions to require
transactional immunity. See State v. Miyasaki, 614 P.2d 915
(Haw. 1980); State v. Soriano, 684 P.2d 1220 (Or. App.) (in
banc), summarily aff'd, 693 P.2d 26 (Or. 1984); Attorney General
v. Colleton, 444 N.E.2d 915 (Mass. 1982); Wright v. McAdory, 536
So. 2d 897 (Miss. 1988). As we have already observed,
the Hawaii Supreme Court's decision in State v. Miyasaki has
particular relevance to Alaska because the adoption of the Hawaii
Constitution was contemporaneous with the adoption of the Alaska
Constitution. Oregon's decision to construe its state
constitution to require transactional immunity is also of
particular relevance to Alaska because of the closely shared
statutory history and legal traditions of the two states. See
generally Brown, The Sources of the Alaska and Oregon Codes,
Parts I and II, 2 UCLA-Alaska L. Rev. 15, 87 (1972).
Moreover, the decisions in the four states that have
declined to follow Kastigar are by far better reasoned and more
persuasive than decisions from states following Kastigar, which,
at best, tend to be conclusory.8 State cases following Kastigar
offer no compelling reasons for construing article I, 9 of the
Alaska Constitution more narrowly than its drafters intended.
Lastly, we feel compelled to voice skepticism about the
state's position that, with carefully implemented and
scrupulously followed procedural safeguards, use and derivative
use immunity can provide protections coextensive with those of
article I, 9. Perhaps the strongest argument for the
proposition that use and derivative use immunity is coextensive
with the privilege against self-incrimination is set forth in
Justice White's concurring opinion in Murphy v. Waterfront
Commission, 378 U.S. at 92. The dissenting opinions of Justice
Brennan in Piccirillo v. New York, 400 U.S. at 552, and Justices
Douglas and Marshall in Kastigar v. United States, 406 U.S. at
462, 467, offer equally strong legal arguments for the
proposition that only transactional immunity offers coextensive
protection. These dissents further set forth compelling reasons
why use and derivative use immunity cannot work as a matter of
practical reality -- whatever its theoretical validity.
We need not rehash the particulars of this familiar
debate. For our purposes, it is sufficient to observe that the
twenty years of experience since Kastigar have provided no clear
resolution. No consensus has emerged as to any procedural
approach that would allow the theoretical guarantees of use and
derivative use immunity to be readily implemented in practice;
nor has actual practice served to allay the fears of the
dissenters in Piccirillo and Kastigar.
If the use and derivative use immunity cases since
Kastigar teach anything, it is that protecting and vindicating
the fifth amendment rights of a person prosecuted after receiving
a grant of use and derivative use immunity will often be possible
only after complex and protracted litigation at both the trial
and appellate levels. See, e.g., United States v. North, 910
F.2d 843 (D.C. Cir. 1990); State v. Munoz, 702 P.2d 985 (N.M.
1985). Yet the privilege against self-incrimination protects
against more than the danger of a final conviction; it extends to
the danger of prosecution itself, operating whenever a witness
"is asked to incriminate himself -- in other words, to give
testimony which may possibly expose him to a criminal charge."
Hale v. Henkel, 201 U.S. 43, 67 (1906). More broadly put, the
privilege "protects against threats to personal liberty without
regard to nice distinctions between forms of action." E.L.L. v.
State, 572 P.2d 786, 789 (Alaska 1977) (Matthews, J.,
dissenting).
One whose rights under article I, 9 of the Alaska
Constitution are vindicated only after trial and conviction,
incarceration pending appeal, and protracted and costly appellate
proceedings is hardly in substantially the same position as if no
prosecution had been allowed in the first instance. To a person
faced with use and derivative use immunity, the apprehension that
testimony compelled under that immunity may result in trial,
conviction, incarceration, and protracted appellate litigation is
neither unreal nor insubstantial. It is a sufficient
apprehension to trigger the protections of the constitutional
privilege. See McConkey v. State, 504 P.2d 823, 825-26 (Alaska
1972).
Moreover, even if use and derivative use
immunity were realistically capable of being
implemented by fair, effective, and readily
enforced procedural safeguards, the
substitution of use and derivative use
immunity for transactional immunity -- or for
the protections of the privilege -- would
remain problematic. In a somewhat different
context, the United States Supreme Court has
observed: "There is always in litigation a
margin of error, representing error in
factfinding, which both parties must take
into account." Speiser v. Randall, 357 U.S.
513, 525 (1958). [This] possibility of
mistaken factfinding -- inherent in all
litigation -- will create the danger that the
legitimate utterance will be penalized. . . .
This is especially to be feared when the
complexity of the proofs and the generality
of the standards applied provide but shifting
sands on which the litigant must maintain his
position.
Id. at 526 (citation omitted).
Recognition of the inherent unreliability of the fact
finding process has figured prominently in the criticism of use
and derivative use immunity. See Kastigar v. United States, 406
U.S. at 468-69 (Marshall, J., dissenting); Piccirillo v. New
York, 400 U.S. at 567-68 (Brennan, J., dissenting). This
criticism -- which has never been adequately answered -- cannot
be ignored or simply dismissed.
The procedures that have been adopted to implement use
and derivative use immunity illustrate the problem. Virtually
all of the federal courts dealing with use and derivative use
immunity have adopted preponderance of the evidence as the
standard that governs the state's burden of proving lack of taint
when it prosecutes a previously immunized witness. See United
States v. North, 910 F.2d at 854. A minority of courts
-- particularly solicitous of individual liberties -- have
adopted the clear and convincing evidence standard. See, e.g.,
State v. Strong, 542 A.2d 866, 872 (N.J. 1988). Under either
standard, the prosecution's improper use of immunized testimony
will not require reversal of a conviction if the impropriety is
found to be harmless beyond a reasonable doubt. See United
States v. North, 910 F.2d at 854. And trial court rulings on
issues of immunity are subject to reversal only if clearly
erroneous. Id. at 855.
Each of these procedural standards builds in slippage
reflecting the inherent and unavoidable unreliability of the
process by which use and derivative use immunity is converted
from theory to actuality. The real life consequences should be
readily apparent: a person granted use and derivative use
immunity is forced to exchange the certainty of reliance on the
privilege, or the relative certainty of transactional immunity's
categorical bar against subsequent prosecution, for the mere
probability -- or, at best, clear probability -- that compelled
testimony or its fruits will not be used in the event of a
subsequent prosecution.
If we are to take seriously -- as we believe we must --
the notion that a valid grant of immunity must be coextensive
with the protections of the privilege against self-incrimination,
then it is difficult to see how a mere probability that compelled
testimony has not been used in securing a conviction can
realistically be equated with the certainty that such testimony
can never be used. To argue, as does the state, that procedural
safeguards can be adopted to make use and derivative use immunity
coextensive seems roughly comparable to arguing that, through
diligent effort and scrupulous adherence to the rules of criminal
procedure, the preponderance of evidence standard can become the
equivalent of, and a constitutionally acceptable substitute for,
the requirement of proof beyond a reasonable doubt in a criminal
case.9
CONCLUSION
In summary, we have found that the drafters of article
I, 9 of the Alaska Constitution intended the privilege against
self-incrimination to be supplanted only by a grant of
transactional immunity. The state has failed to advance any
sound reason to depart from the originally intended scope of the
privilege. Examination of Alaska's case law and the case law of
our sister states bolsters the conclusion that a narrowing of
article I, 9 would be inappropriate. Examining the case law
that has emerged during the twenty years since Kastigar, we find
little to recommend a narrow reading of Alaska's constitutional
privilege and much to recommend against it. We thus conclude
that only a grant of transactional immunity10 will meet the
requirements of article I, 9.
"Nothing new can be put into the Constitution except
through the amendatory process. Nothing old can be taken out
without the same process." Ullmann v. United States, 350 U.S. at
428. Accordingly, Alaska's witness immunity statute, AS
12.50.101, must be held insufficient to overcome an otherwise
valid claim of privilege.
We AFFIRM the superior court's order.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. See Alaska Appellate Rule 404(a); Surina v. Buckalew,
629 P.2d 969, 972-73 (Alaska 1981).
2. See Alaska Appellate Rule 402(b)(2).
3. In the present case, Jill Jahnke-Leland has been
convicted of and sentenced for manslaughter in connection with
the incident as to which her testimony is sought; her conviction
awaits appellate review. A grant of use and derivative use
immunity under these circumstances would have no effect on Jahnke-
Leland's pending appeal and would not preclude the state from
reprosecuting in the event of a reversal. On retrial, use and
derivative use immunity would only prohibit the state from any
direct or indirect reliance on Jahnke-Leland's immunized
testimony or the fruits thereof. The potential effects of a
grant of transactional immunity, on the other hand, are not clear-
cut. While this is an issue that the parties have not briefed
and that we do not decide in this opinion, we note that cases
from other jurisdictions suggest that transactional immunity
would have no effect on Jahnke-Leland's pending appeal and would
require dismissal of charges only in the event of a reversal on
appeal. See, e.g., Katz v. United States, 389 U.S. 347, 349 n.3
(1967); Reina v. United States, 364 U.S. 507, 512-14 (1960);
State v. Runions, 665 P.2d 1358 (Wash. 1983); cf. Steinberger v.
District Court, 596 P.2d 755 (Colo. 1979); State v. McCullough,
744 P.2d 641 (Wash. App. 1987).
4. The court's deference to the legislature on what scope
of immunity should be required is evidenced by its reluctance to
express any overt preference in Surina, 629 P.2d at 979 n.21, and
its subsequent reliance on its supervisory powers in State v.
Serdahely. Equally telling is the court's observation, in
Surina, "that there is merit to the position that the decision
here should be a legislative one. . . . [W]e emphasize the
`crying need' for appropriate legislation." Surina, 629 P.2d at
978.
In this connection, we note that Jahnke-Leland
challenges Alaska's witness immunity statute as invalidly
enacted. Jahnke-Leland characterizes State v. Serdahely's
adoption of Uniform Criminal Rule 732 as an exercise of the
court's formal rule-making authority. Alaska Const. art. IV,
15. Under article IV, 15, once the supreme court promulgates a
rule, that rule may be changed by the legislature only "by two-
thirds vote of the members elected to each house." Furthermore,
unless the legislature's intent to modify a supreme court rule is
expressed in the text of the bill purporting to enact the
modification, no modification will occur. See Leege v. Martin,
379 P.2d 447 (Alaska 1963). According to Jahnke-Leland, because
the legislature failed to specifically state, in the language of
AS 12.50.101, its intent to modify Surina v. Buckalew, the
statute does not work a modification of the decision.
We reject this argument, for we believe it mistaken in
characterizing Surina v. Buckalew as an exercise of formal rule-
making power under article IV, 15. In our view, the strong
preference that the supreme court expressed in Surina for initial
legislative action, the court's evidently calculated reference in
Serdahely to its "supervisory powers" as opposed to its constitu-
tional "rule-making power," see Alaska Const. art. IV, 15, and
the court's subsequent failure to formally promulgate the
substance of Uniform Criminal Rule 732 as an Alaska Rule of
Criminal Procedure, all strongly indicate that the supreme court
intended State v. Serdahely to control practice and procedure in
the courts only provisionally, until the legislature took action.
We do not construe State v. Serdahely as having been intended to
place the legislature under the restrictions mandated by article
IV, 15.
5. As Justice Brennan put it in his dissenting opinion in
Piccirillo v. New York, 400 U.S. at 571-72 (citations and
footnotes omitted):
By 1956, Mr. Justice Frankfurter,
writing for the Court, could assert that the
1893 statute, enacted shortly after
Counselman and adopting the transactional
immunity standard, had "become part of our
constitutional fabric." Ullmann v. United
States, 350 U.S. 422, 438, 76 S.Ct. 497, 506,
100 L.Ed. 511. Again, the Court in Ullmann
relied on the transactional immunity standard
to reaffirm the holding of Brown v. Walker
against the dissent of two Justices who
repeated the arguments of the Brown
dissenters that even transactional immunity
did not satisfy the constitutional privilege.
Ullmann's assertion that transactional
immunity has "become part of our constitu-
tional fabric" finds support in the action of
Congress in the 78 years since Counselman
first announced the standard. Congress has
written more than 40 immunity provisions into
various federal statutes during that time,
and with one minor and unexplained exception
in 1898 and two exceptions in 1970, every
provision has provided for transactional
immunity. Moreover, as reflected by an
appendix in petitioner's brief, the majority
of state immunity statutes provide for
transactional immunity, even though the
States were not subject to the full effect of
the Fifth Amendment until 1964.
6. The state attempts to distinguish Miyasaki by pointing
out that the Hawaii Supreme Court relied in part on a report of
its constitutional convention expressly stating that art. I,
10, was "derived from the first three clauses of the 5th
Amendment . . . and will give to this State the benefit of
Federal decisions construing the same." Miyasaki, 614 P.2d at
922. The state points out that the proceedings of the Alaska
constitutional convention contain no corresponding statement of
intent with regard to article I, 9. However, as reflected in
the rule that a state is "presumed to adopt the known and settled
construction of . . . laws by the courts of the state from which
they are taken," Brown v. Walker, 161 U.S. at 600, the statement
of intent relied on by the Hawaii Supreme Court only makes
explicit that which is unmistakably implicit. Absent some
affirmative declaration of intent to depart from the meaning of
the federal constitutional language, there is simply no basis for
presuming that the members of the Alaska constitutional
convention intended article I, 9 to extend protections
substantively different from those then available under the
federal constitution.
Indeed, although the proceedings of the Alaska
constitutional convention contain no helpful discussion on
article I, 9, the convention debate concerning Alaska's due
process clause, article I, 7, is enlightening. Article I, 7
of the Alaska Constitution provides:
No person shall be deprived of life, liberty,
or property without due process of law. The
right of all persons to fair and just
treatment in the course of legislative and
executive investigations shall not be
infringed.
The second clause of this provision, dealing with fair and just
treatment in the course of investigations, is unique to Alaska.
Convention debate surrounding this provision makes it clear that
its drafters were particularly concerned about the abuses and
inquisitorial practices that had occurred in the McCarthy investi-
gations. The debate on the fair and just treatment clause makes
clear that the members of Alaska's constitutional convention were
acutely aware of the limits of the federal constitution in
protecting individuals against such abuse. If anything, the
constitutional debate and the ultimate inclusion of the provision
in article I, 7 bear witness to the convention's concern that
protections against compulsory self-incrimination under the
federal constitution might be inadequate. For example, Ullmann
v. United States reaffirmed, in the context of a McCarthy era
grand jury investigation, that the fifth amendment does not
protect witnesses against general public opprobrium or similar
collateral consequences stemming from being forced to testify
under immunity. 350 U.S. at 430-31. The debate on article I,
7 establishes that this provision was included in the Alaska
Constitution for the specific purpose of preventing government
officials from using their investigative powers in order to
inflict such harm on witnesses. See 2 Proceedings of the Alaska
Constitutional Convention (PACC) 1446-1469 (January 7, 1956).
7. The competing social policies favoring use and
derivative use immunity, on the one hand, and transactional
immunity, on the other, are summarized and discussed in 2 W.
LaFave and J. Israel, Criminal Procedure, 8.11(b) (1984), and
in the Uniform Rules of Criminal Procedure, (U.L.A.) rule 732(b),
commentary at 342-53 (1974). Also, compare Feldman and Ollanik,
Compelling Testimony In Alaska: The Coming Rejection Of Use And
Derivative Use Immunity, 3 Alaska L. Rev. 229, 250-54 (1986) with
Note, Standards for Exclusion in Immunity Cases after Kastigar
and Zicarelli, 82 Yale L.J. 171 (1972). In State v. Serdahely,
the Alaska Supreme Court expressed its preference for the
policies favoring transactional immunity, as delineated in the
commentary to Uniform Criminal Rule 732(b). Alaska's
legislature, in contrast, expressed its preference for the
policies favoring use and derivative use immunity, and explained
its views in considerable detail when it enacted the 1982 witness
immunity statute. See House Journal Supp. No. 63 at 12-16, 1982
House Journal 2356. For purposes of this opinion, it is
unnecessary for us to select between the countervailing policies.
Nor should our opinion be taken as indicating that the Alaska
Supreme Court's preference for the policies favoring
transactional immunity should prevail over the legislature's
preference for the policies favoring use and derivative use
immunity. Our point, rather, is that restriction of a
constitutionally specified right necessarily requires more than
legislative preference for social policies differing from those
expressed in a specific constitutional provision.
8. The state cites twelve cases for the proposition that
the "vast majority of state courts" have elected to follow
Kastigar in holding use and derivative use immunity coextensive
with the privilege against self-incrimination. However, only
four of these cases involve state constitutional issues, and only
two of those four cases expressly consider and decide that their
state privilege against self-incrimination should not be
construed more broadly than the fifth amendment by requiring
transactional immunity. In Ex Parte Shorthouse, 640 S.W.2d 924,
928 (Tex. Crim. App. 1982) (en banc), the court -- relying on a
prior decision generally indicating that the Texas Constitution's
privilege against self-incrimination provided safeguards similar
to the fifth amendment -- summarily concluded that the Texas
Constitution should not be read more broadly than the fifth
amendment with respect to the scope of immunity. In In re Caito,
459 N.E.2d 1179 (Ind. 1984), the supreme court of Indiana
considered a claim that Indiana's witness immunity statute was
deficient because it offered only use immunity, and not use and
derivative use immunity. The court rejected the claim,
interpreting the statute to provide for use and derivative use
immunity. Although the sufficiency of use and derivative use
immunity was not challenged, and no state constitutional issue
was raised, the court, citing Kastigar and Murphy v. Waterfront
Commission, summarily concluded that use and derivative use
immunity was sufficient under both the fifth amendment and the
Indiana Constitution's privilege against self-incrimination. In
re Caito, 459 N.E.2d at 1184.
In Patchell v. State, 711 P.2d 647 (Ariz. App. 1985),
the court held that use and derivative use immunity was not
barred by a provision of the state constitution requiring
transactional immunity for certain categories of cases; the court
declined to read that constitutional provision as implicitly
requiring transactional immunity in all categories of cases. The
court gave no consideration to the issue of whether Arizona's
privilege against self-incrimination should be read more broadly
than the fifth amendment, apparently assuming that it should not.
In State v. Strong, 542 A.2d 866 (N.J. 1988), the court, applying
a state use and derivative use immunity statute, construed New
Jersey's privilege against self-incrimination more broadly than
the fifth amendment by holding the clear and convincing evidence
standard applicable to the prosecution's burden of proving that a
post-immunity prosecution did not involve tainted evidence. Id.
at 878. No claim was raised that use and derivative use immunity
was deficient, and the court did not discuss the issue.
None of the remaining eight cases cited by the state
considers use and derivative use immunity in the context of a
state privilege against self-incrimination. Two cases, Brooks
v. State, 233 S.E.2d 208 (Ga. 1977), and People v. Smith, 429
N.E.2d 870 (Ill. App. 1981), merely rely on Murphy v. Waterfront
Commission to reject claims that a state grant of use and
derivative use immunity is deficient because it fails to protect
against federal prosecution. The other six cases involve no
challenge to the adequacy of use and derivative use immunity;
instead, they are simply cases in which state courts have applied
or expressed approval of use and derivative use immunity, based
on Kastigar, with no consideration as to whether transactional
immunity should be required on state grounds. See Daly v.
Superior Court, 560 P.2d 1193, 1200 (Cal. 1977) (in bank); State
v. Durrant, 769 P.2d 1174 (Kan. 1989); Gandy v. State, 607 P.2d
581 (Nev. 1980); State v. Munoz, 702 P.2d 985 (N.M. 1985); State
v. Sinito, 330 N.E.2d 896 (Ohio 1975); In re Investigating Grand
Jury, 433 A.2d 5 (Pa. 1981).
9. The state argues that, under the peculiar circumstances
of the present case, which involves a grant of immunity extended
after Jill Jahnke-Leland has already been tried and convicted,
procedural safeguards are readily available to protect Jahnke-
Leland from any realistic possibility that her testimony might be
used against her in any future prosecution. Based on the
likelihood that use and derivative use immunity could be
implemented in a trouble-free manner under the circumstances of
the present case, the state asks us to construe article I, 9 to
allow use and derivative use immunity. This approach places the
cart of expediency squarely before the constitutional horse.
There is merit to the state's contention that cases like the
present one are among the most suitable for application of the
use and derivative use immunity standard. See, e.g., Note,
Standards for Exclusion in Immunity Cases after Kastigar and
Zicarelli, 82 Yale L.J. 171, 181-87 (1972). However, the
existence of a limited category of cases in which use and
derivative use immunity could be applied with relatively little
trouble is not a compelling justification for departing from the
intent of the drafters of article I, 9 of the Alaska
Constitution.
10. Under the United States Supreme Court's decision in
Murphy v. Waterfront Commission, it is clear that a state grant
of immunity to Jill Jahnke-Leland -- whether transactional or use
and derivative use immunity -- would protect Jahnke-Leland in any
federal prosecution against use or derivative use of her
compelled testimony. It is at least arguable, however, that, to
meet the requirements of the Alaska Constitution, a grant of
immunity would be required to provide transactional immunity from
both state and federal prosecution. See Surina v. Buckalew, 629
P.2d at 980. The parties to the present case, however, have
neither raised nor briefed this issue, and from the facts it
appears that Jill Jahnke-Leland stands in no realistic danger of
federal prosecution in connection with the incident as to which
her testimony has been sought. For these reasons, we find it
unnecessary, at this juncture, to address the issue.
