Substitutes use immunity for transactional immunity

Finally, the bill precludes, with few exceptions, a grand jury for indicting a witness upon whom it has conferred immunity. The same grand jury that conferred immunity can only subsequently indict the witness for perjury or contempt or where the immunity was conferred solely because the witness produced documents or other physical evidence for which he possessed a privilege against self-incrimination with respect to the act of producing the evidence. A different grand jury panel can, however, subsequently indict the witness for any offense based on evidence for which he does not have immunity.

Justification

The current New York Law governing immunity from prosecution is illogical, capricious, inflexible and contrary to public interest. The existing law confers total immunity and benefits no one except the criminal. Furthermore, the criminal can take advantage of the prosecutor's mistake or manipulation at testimony to achieve total immunity for himself or herself. The current law also hinders investigations by discouraging prosecutors from calling witnesses who may themselves obtain a total immunity from any prosecution. There are no constitutional, legal or practical reasons for allowing the blanket immunity conferred by New York's law. Its results are self-defeating, unjust, and not a reflection of the intentions of the CPL drafters.

The transactional immunity provision is unrealistically restrictive. It prevents the legitimate prosecution of many offenses, especially those involving sophisticated or close-knit criminal groups. Additionally, it has been construed by the courts to grant complete transactional immunity in situations that the law cannot have reasonably intended, and which are contrary to the public interest. For example, in one case it was held that a witness who testified before a grand jury investigating a homicide received immunity from unrelated pending charges of specific drug sales simply because she testified, as a general matter, that she sold drugs for a living. PEOPLE V. MCFARLAN , 42 NY 2d 896 (1977).

This bill changes the law from "transactional" immunity to "use" immunity. It is derived from a federal statute, Title 18, U.S.C. sections 6002 and 6003, which was approved by the united States supreme Court in KASTIGAR V. UNITED STATES , 405 U.S. 441 (1972). The Court in KASTIGAR held that a witness compelled to testify under a statutory scheme like the one in this bill would receive all the benefits to which he is entitled under the Fifth Amendment to the United States constitution. Under KASTIGAR , the purpose, except if his testimony were perjurious or contumacious. This means, as is stated explicitly in the bill, that even information derived directly or indirectly from the witness' testimony cannot be used against him or her. This last provision places a heavy burden upon a prosecutor who decides to proceed against a witness who has received immunity. Under

KASTIGAR , in such a case, the prosecution would have the "affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony". 406 U.S. AT 460 .ct. The Second Circuit Court of Appeals has suggested that the prosecution would be unlikely to meet such a burden unless it somehow certified the evidence in its possession before it moved to compel testimony. GOLDBERG V. UNITED STATES , 472 F.2d 573, 516 n.5 (1973). Under this bill, if the people wish to prosecute a person whose testimony they also wish to compel, they must be prepared to prove beyond a reasonable doubt that the evidence used against him was not derived from his testimony.

To ensure that witnesses who are granted immunity are properly protected against prejudice, the bill prohibits, with narrow exceptions, a grand jury from indicting a witness upon whom it has conferred immunity. witnesses may be indicted by the grand jury that conferred immunity only for the offenses of perjury or contempt or only where the immunity was conferred for the act of producing books, papers, records or other physical evidence. A different grand jury may, however, indict the immunized witness for an offense based on other evidence for which he does not have immunity.

This bill implements a recommendation contained in prior Annual Messages to the Legislature by the Governor.

Fiscal implications

None.

Effective date

The first day of November after it has become a law.