In a remarkable case this week, the California Supreme Court reversed the California Court of Appeal when it held that a defendant's failure to object to a witness asserting the Fifth Amendment waives the issue on appeal. The specific evidentiary issue was whether a trial court errs when it admits the prior preliminary hearing testimony of a witness who invokes the privilege against self incrimination at trial. (NO) That seems like a straight forward ruling however, what is important is that the CASC fleshes out further when and under what circumstances a person may assert the Fifth Amendment privilege against self-incrimination.
In People v. Seijas (full text below), the CASC applied Hoffman and Ohio v. Reiner in California. The Seijas court stated:
In an oft-cited case, the high court stated that this privilege “must be accorded liberal construction in favor of the right it was intended to secure.” (Hoffman v. United States (1951) 341 U.S. 479, 486.) A witness may assert the privilege who has “reasonable cause to apprehend danger from a direct answer.” (Ibid.; accord, Ohio v. Reiner (2001) 532 U.S. 17, 21) However, “The witness is not exonerated from answering merely because he declares that in doing so he would incriminate himself—his say-so does not of itself establish the hazard of incrimination.” (Hoffman v. United States, supra, at p. 486.) The court may require the witness “to answer if ‘it clearly appears to the court that he is mistaken.’ ” (Ibid.) “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Id. at pp. 486-487.) To deny an assertion of the privilege, “the judge must be ‘ “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency” to incriminate.’ ” (Malloy v. Hogan (1964) 378 U.S. 1, 12, quoting Hoffman v. United States, supra, at p. 488.)
California’s Evidence Code states the test broadly in favor of the privilege: “Whenever the proffered evidence is claimed to be privileged under Section 940 [the privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.” (Evid. Code, § 404, italics added.) We have said that this section incorporates the standard of Hoffman v. United States, supra, 341 U.S. 479. (People v. Ford (1988) 45 Cal.3d 431, 441-442; see also People v. Cudjo, supra, 6 Cal.4th at p. 617.)
Applying the facts to the case before it, The seijas court held that one of the witnesses to the crime, a 13 year old who may (or may not) have had gang ties and who was in the car with the alleged murderers just before the crime, rightly fully asserted the privilege.
Full Text, People v. Seijas:
http://caselaw.lp.findlaw.com/data2/californiastatecases/s123790.doc
In PDF: http://caselaw.lp.findlaw.com/data2/californiastatecases/s123790.pdf
This means that if you have a case going to trial where any of the witnesses have even the slightest Fifth Amendment problem you should demand those witnesses be given immunity before testifying. Every effort should be made to object to the witness testifying (if that is a tactical advantage). If you can object that the crimes that the prosecution purports to immunize are not federal crimes. In other words, object that the state prosecutor cannot possibly immunize from federal crimes and for that reason the state immunity is not good enough. (State drug crimes can apparently always be made federal drug crimes in the wake of the ruiling in Gonzales v. Raich).
If the witness is granted state Kastigar immunity, you must demand federal immunity as well. The state prosecutor will cite Murphy v. Waterfront Commission, 378 U.S. 52 (1964). The state prosecutor will argue that Murphy stands for the proposition that state court immunity is good enough, in other words, if the state promises Kastigar immunity to a witness that witness can essentially estop the federal government from prosecuting in the wake of a state immunity agreement. Moreover, Murphy can be easily distinguished and/or blunted.
Murphy creates a federal constitutional exclusionary rule in this context: when a state witness is compelled to give testimony in a state proceeding under a grant of immunity the "Federal Government must be prohibited from making any such use of compelled testimony and its fruits." This means that a witness should be able to keep out the compelled testimony from "other" criminal and quasi-criminal proceedings. However, the Murphy rule has never been applied by the Supreme Court to at least two contexts: the courts martial and the immigration deportation or removal because of criminal conviction. If the potential witness has exposure on either of these two grounds, that witness should be able to assert the Fifth even with a grant of Kastigar immunity and a federal immunity letter (or in the alternative, a state court ruling that the Murphy exclusionary rule applies).
Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.
