Immunity, subpoenas, privileges, and compelled testimony
by: Rjohnson • September 5, 2012 • no comments
Both the Fifth Amendment and Article I, section 12 of the Oregon Constitution provide a privilege against self-incrimination. While you may be required to testify, such testimony cannot be used to incriminate you.
Under federal law, you are entitled to "use and derivative use" immunity; your testimony cannot be used directly, and can't be used to find evidence to use against you. E.g., Kastigar v. United States, 406 US 441, 92 S Ct 1653, 32 L Ed 2d 212 (1972).
The Oregon protection is stronger, and provides 'transactional' immunity, meaning that you cannot be prosecuted for the subject of your compelled testimony. State v. Soriano, 68 Or App 642, affirmed 298 Or 392 (1984). Mr. Soriano was prosecuted for refusing to testify before a grand jury. Although he had statutory immunity, he argued, correctly, that the use-immunity provided by statute was less than the constitution provided, and thus he could not be compelled to testify. In refusing to testify, he gambled that he correctly interpreted the statute at issue. He won that gamble, but it seems like a serious risk.
In theory, compelled testimony now carries immunity with it-the statutes have been changed since Soriano was decided. But that immunity comes from a sloppily drafted statute. ORS 136.619 provides in part:
A witness who, in compliance with a court order issued under ORS 33.085 or 136.617, testifies or produces evidence that the witness would have been privileged to withhold but for the court order, may be prosecuted or subjected to any penalty or forfeiture for any matter about which the witness testified or produced evidence unless the prosecution, penalty or forfeiture is prohibited by section 12, Article I of the Oregon Constitution. The testimony of the witness or evidence produced or information derived from the testimony or evidence may not be used against the witness in any criminal prosecution. . . .
The first sentence is presumably intended to limit the statutory protection to the constitutional limitations, but the language is strange and sloppy. Article I, section 12 does not prohibit prosecutions, it prohibits compelled testimony. (It also provides double-jeopardy protection, which does prohibit prosecutions. But that doesn't help in deciding whether ORS 136.617 provides adequate self-incrimination protection.) Accordingly, if the testimony has been extracted, I'm not sure that Article I, section 12 has any further effect. The second sentence clearly provides use and derivative-use immunity.
If ORS 136.617 does not provide transactional immunity, then the statutory immunity is an inadequate substitute to the constitutional privilege. In that case, under Soriano a claim of privilege is a basis to refuse to testify. Immunity is not itself constitutional; it is a statutory substitute for the constitutional right, and any immunity granted is according to the statute. State v. Graf, 114 Or App 275 (1992).
Because immunity is statutory, the first sentence of ORS 136.617 is inadequate. Article I, section 12 never provides immunity, and therefore it does not preclude prosecution as a remedy for compelled self-incrimination. The constitutional result of compelled testimony is use and derivative-use immunity, not transactional immunity. E.g., State v. Beugli, 126 Or App 290 (1994). Because Article I, section 12 does not provide immunity, it never precludes a prosecution for violation of the right against self-incrimination.
Therefore, the privilege against self-incrimination precludes the necessity of possibly incriminating testimony unless the prosecutor grants transactional immunity. My experience is that they hate doing that, and the only time I insisted on it, they released my client from the subpoena, which was the result we wanted. Even if the prosecutor gave the demanded immunity, the state prosecutor cannot give federal immunity, or immunity for other states, but that is a problem for another article.
