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Kansas Supreme Court Rules Grant of ‘Use’ Immunity Insufficient to Compel Testimony

by Richard Resch

Jose Delacruz, Anthony Waller, and three others participated in the robbery of Joshua Haines, who was murdered during the act. Delacruz was convicted of aggravated robbery, but he was acquitted of felony murder. He was sentenced to 83 months in prison. Both the conviction and sentence were upheld on appeal.

After the completion of his trial, the State subpoenaed him to testify at Waller’s murder trial. Delacruz attempted to invoke his Fifth Amendment right against self-incrimination, but the State advised the district court that it was granting him immunity for his testimony. According to the written grant of immunity, only use immunity was being granted, not both use and derivative use immunity.

Delacruz objected to the proffered grant of immunity as insufficient to protect his right against self-incrimination because his conviction was still on appeal, and the grant did not protect him from federal prosecution. The U.S. Attorney advised the State that no federal charges would be forthcoming because that would violate the Department of Justice’s Petite policy derived from Petite v. United States, 361 U.S. 529 (1960), which bars federal prosecution following a state prosecution for the same conduct.

Citing the grant of immunity, the district court issued an order compelling Delacruz to testify in Waller’s trial. Upon advice of counsel, he still refused to testify. He was charged with criminal contempt of court. His case was assigned to a different judge, and he waived his right to a jury trial. He was found guilty and sentenced to 108 months in prison to run consecutively with his 83-month sentence. The Court of Appeals affirmed the contempt conviction and sentence.

Delacruz appealed to the Kansas Supreme Court, arguing that his Fifth Amendment right against compulsory self-incrimination was violated because the grant of immunity was not co-extensive with his constitutional right. The Supreme Court agreed with him.

The Court began its analysis by explaining that the power to compel testimony is not absolute, and the most important check on the government’s power to compel testimony is the Fifth Amendment privilege against compulsory self-incrimination. Kastigar v. United States, 406 U.S. 441 (1972). The Court further explained that the privilege “not only applies to a witness’ answers that would directly support a criminal conviction but also those answers which would furnish a link in the chain of evidence needed to prosecute the claimant for a crime.” Hoffman v. United States, 341 U.S. 479 (1951).  

However, an individual may not invoke the privilege if there is no reasonable cause to fear incrimination. Id. The government can remove the fear of incrimination by granting immunity in exchange for testimony, but not all grants of immunity remove the reasonable fear of incrimination.

There are three types of immunity: (1) transactional, (2) use and derivate use, and (3) use. Transactional provides protection for offenses related to the compelled testimony and is broader than the privilege against self-incrimination. Use and derivative use protects against the use of the compelled testimony together with evidence derived therefrom. It is co-extensive with the constitutional privilege. In contrast, simple-use immunity prevents the compelled testimony from being used against the witness, but it does not bar the use of evidence derived from the testimony from being used against the witness in a criminal prosecution. Consequently, use immunity safeguards the witness’ privilege against self-incrimination.

In the present case, the State granted only use immunity to Delacruz. Citing the rationale articulated by the U.S. Supreme Court in Kastigar, the Court noted that the derivative use component is critical for a grant of immunity that will permit the government to compel testimony from a witness who has invoked his or her Fifth Amendment privilege. The State’s grant of immunity to Delacruz omitted this essential component and thus did not remove the reasonable cause to fear incrimination.

The Kansas Supreme Court concluded that the State’s grant of use immunity was not co-extensive with Delacruz’s constitutional right against self-incrimination. As a result, the district court order compelling him to testify was unlawful as were his order for contempt of court and a 108-month sentence. Accordingly, the Court reversed the order of contempt and vacated the 108-month sentence. See: State v. Delacruz, 2018 Kan. LEXIS 26 (2018). 

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