Bill Text: HI SB836 | 2010 | Regular Session | Introduced

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Bill Title: Constitutional Amendment; Use Immunity

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [SB836 Detail]

Download: Hawaii-2010-SB836-Introduced.html

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Report Title:

Constitutional Amendment; Use Immunity

 

Description:

Amends Hawaii's Constitution so a criminal case witness who asserts self-incrimination privilege may be compelled to testify or provide evidence as long as the testimony or evidence cannot later be used against the witness in a criminal case except for perjury, false statement, or failure to comply with the order to testify.

 

THE SENATE	S.B. NO.	836
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

 

 

PROPOSING AN AMENDMENT TO ARTICLE XVI OF THE CONSTITUTION OF THE STATE OF HAWAII.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that it is critically important to the successful prosecution of criminal cases in Hawaii that the State has the means to compel the testimony of witnesses in possession of vital information.  Currently, if a witness asserts a privilege to refuse to testify or provide evidence on the ground of self-incrimination, the State can compel that witness's testimony only by providing that witness complete and permanent "transactional immunity" from any criminal prosecution ever for or on account of any act, transaction, or matter concerning which the witness is required to testify.  This severely burdens Hawaii's prosecutors.  By comparison, in prosecutions by the United States and most of Hawaii's sister states, a witness's testimony can be compelled, so long as the testimony, and any evidence and information derived from that testimony, cannot be used against that witness in any criminal case, except one for perjury, false statement, failing to comply with the order to testify, or similar offenses.  Such a system, called "use immunity," has been upheld as complying with the Constitution of the United States by the United States Supreme Court.

     Hawaii's legislature enacted a "use immunity" statute, but the Hawaii Supreme Court struck it down as violating Hawaii's Constitution.  Thus, amending Hawaii's Constitution is the only option if "use immunity" is to be allowed in Hawaii.

     The purpose of this amendment is to establish "use immunity" to compel testimony before the criminal courts and grand juries of the State of Hawaii.  The legislature finds that "use immunity" appropriately balances the needs of society to prosecute serious criminal cases, with the rights of individuals.  The legislature finds that the current system, which conditions compelling testimony on a grant of "transactional immunity," makes society pay too high a price for such testimony and severely impedes the ability of prosecutors to obtain convictions in appropriate cases.

     This amendment is self-executing.  If adopted, judges of the circuit courts must issue "use immunity" orders compelling testimony or other evidence, upon application of the attorney general or the attorney general's designee, but such orders must also provide that no testimony or other evidence compelled under the order, nor any information directly or indirectly derived from such testimony or other evidence, may be used against the witness in any criminal case, except a prosecution for committing perjury while giving the compelled testimony, for giving a false statement while giving the compelled testimony, or for failing to comply with the order to testify.

     SECTION 2.  Article XVI of the Constitution of the State of Hawaii is amended by adding a new section to be appropriately designated and to read as follows:

"USE IMMUNITY

Section   .  Whenever a witness refuses, on the basis of the witness's privilege against self-incrimination, to testify or provide other evidence to a grand jury or to a court in a criminal case, upon application of the attorney general or the attorney general's designee, a judge of the circuit court of the circuit in which the grand jury or court is located, shall issue an order to such witness to testify or provide such evidence, and such order shall also provide that no testimony or other evidence compelled under the order, nor any information or evidence directly or indirectly derived from such testimony or evidence, may be used against the witness in any criminal case, except a prosecution for committing perjury while giving the compelled testimony, for giving a false statement while giving the compelled testimony, or for failing to comply with the order to testify.

     A witness issued such an order may not refuse to comply with the order on the basis of the witness's privilege against self-incrimination, but no testimony or other evidence compelled under the order, nor any information or evidence directly or indirectly derived from such testimony or evidence, may be used against the witness in any criminal case, except a prosecution for committing perjury while giving the compelled testimony, for giving a false statement while giving the compelled testimony, or for failing to comply with the order to testify."

     SECTION 3.  The question to be printed on the ballot shall be as follows:

"Shall the Constitution of the State of Hawaii be amended to provide that a witness who asserts a privilege against self-incrimination may be compelled to testify or provide evidence in a criminal case or before a grand jury, so long as such testimony, evidence, and any information derived therefrom cannot be used against that witness in any criminal case except perjury, false statement, or failing to comply with the order to testify?"

     SECTION 4.  New constitutional material is underscored.

     SECTION 5.  This amendment shall take effect upon compliance with article XVII, section 3, of the Constitution of the State of Hawaii.

 

INTRODUCED BY:	_____________________________
	By Request