Court can order District Attorney to grant immunity to a witnesses if the testimony is clearly exculpatory and essential

The California Court of Appeal held that the prosecution in this case was not required to grant use immunity to a prosecution witness who invoked his right of self-incrimination at trial instead of introducing the witness’s preliminary hearing testimony under the provisions of Evidence Code section 1291.1, the hearsay and confrontation clause exception for former testimony.

Appealing a conviction for assault with a deadly weapon, the defendant contended that:
(1) the trial court erred in admitting at trial prosecution witness’s preliminary hearing testimony after he invoked the right to remain silent because the defense did not have the opportunity to cross-examine the witness about a prior criminal conviction not disclosed by the prosecution until after the preliminary hearing or about alleged threats made to defendant’s wife the day after defendant’s arrest;
(2) instead of allowing the prior testimony, either the trial court or the prosecutor should have provided the witnesses with use immunity and the prosecutor failed to adequately explain his reason for declining to provide immunity.

Immunity not requires when witness testimony not exculpatory and essential

The Court ruled that the prosecutor here was not required to provide immunity because the testimony the defense hoped to gain was not clearly exculpatory and essential. And although due process required the prosecution to disclose the witness’s misdemeanor conviction prior to the preliminary hearing, the failure to disclose was harmless beyond a reasonable doubt.

At the preliminary hearing the District Attorney called a witness who testified that the defendant committed the crime. At trial, then he witness took the Fifth and refused to testify because of impeachment that the defense developed. The District Attorney was permitted to present the witness’s preliminary hearing testimony. The defense asked the judge to grant immunity or order the District Attorney to grant immunity, to permit the defense to call the witness and impeach him. The judge refused. The Court of affirmed relying on People v. Masters (62 C4th 1019), which says that judges have no power to grant immunity on their own.

When judges can grant immunity

Masters says that the testimony has to be essential and clearly exculpatory for a judge to grant immunity. The Court here concluded that the defense here failed to establish that the witness’s testimony would have been essential or exculpatory. At the preliminary hearing his testimony had been inculpatory. The defense also argued that Evidence Code Section 1291 permits preliminary hearing . testimony to be used at trial only if the defense had the same motive for cross examining and had the opportunity to do so at the prelim. The Court found that the motive and opportunity were sufficiently similar.

Need for immunity not supported by defense

The defense failed to show that the prosecution witness’s testimony was both clearly exculpatory and essential. The prosecution here was not obligated to articulate a countervailing governmental interest for refusing to grant immunity because the defendant failed to show the witness’s testimony was clearly exculpatory. The prosecution’s refusal to grant immunity was a distortion of the fact finding process amounting to a due process violation.

Because defendant has failed to establish that a grant of immunity was required, the Court concluded that the witness was unavailable for purposes of both section 1291 and defendant’s confrontation clause rights because the witness was entitled to and did invoke his constitutional right against self-incrimination.

People v. Hull; C079134; 1/31/19; C/A 3rd

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