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State v. Corbett (10/1/2012) ap-2377

State v. Corbett (10/1/2012) ap-2377

                                              NOTICE
 

        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.  Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts: 



                              303 K Street, Anchorage, Alaska  99501
 

                                        Fax:   (907) 264-0878
 

                         E-mail:   corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



STATE OF ALASKA, 



                                Petitioner, 



                        v.                                  Court of Appeals No. A-11352
 

                                                          Trial Court No. 3AN-12-2773 Cr
 

BRYAN K. CORBETT, 



                        nominal Respondent,                        O    P  I  N  I  O  N
 



        and 

                                                             No. 2377   -    October 1, 2012
 

DUPRI CORBETT, 



                        Real Party in Interest. 



                Petition   for   Review   from   the   Superior   Court,   Third   Judicial 

                District, Anchorage, John R. Lohff, Judge. 



                Appearances:      Kenneth     M.   Rosenstein,    Assistant   Attorney 

                General,     Office    of   Special   Prosecutions     and    Appeals, 

                Anchorage, and Michael C. Geraghty, Attorney General, Juneau, 

                for the Petitioner.  John N. Page III, Assistant Public Defender, 

                and   Quinlan    Steiner,  Public   Defender,    Anchorage,     for  the 

                nominal     Respondent.      Daniel     S.  Bair,   Assistant    Public 

                Advocate, and Richard Allen, Public Advocate, Anchorage, for 

                the Real Party in Interest. 



                Before:    Coats,    Chief  Judge,   and  Mannheimer      and  Bolger, 

                Judges. 



                MANNHEIMER, Judge. 


----------------------- Page 2-----------------------

                 This   case   involves   a   witness   who   has   been   summoned   to   testify   at   a 



criminal trial, and who has been granted immunity pursuant to AS 12.50.101.                       Despite 



this grant of immunity, the witness continues to assert that he can lawfully refuse to 



testify   because   of   the   privilege   against   self-incrimination   guaranteed   by   Article   I, 



Section 9 of the Alaska Constitution, and the analogous privilege guaranteed by the Fifth 



Amendment to the United States Constitution. 



                 The witness, Dupri Corbett, is the young son of the defendant, Bryan K. 



Corbett.  The State has charged Bryan Corbett with second-degree assault, alleging that 



Corbett strangled his son as a method of discipline. 



                 According to the State's allegations, this incident came to light when Dupri 



went   to   school   and   a   counselor   observed   an   injury   to   the   boy's   neck.   When   the 



counselor questioned Dupri about this injury, Dupri said that his father had strangled him 



to the point that his breathing was cut off. 



                 But when Dupri was summoned to testify before the grand jury, Dupri 



recanted his earlier accusation and testified that his father had not assaulted him. Despite 



Dupri's testimony, the grand jury indicted Bryan Corbett for assaulting his son. 



                 Dupri has now been summoned to testify at his father's trial, and the State 



has granted him immunity under AS 12.50.101.                  Despite this grant of immunity, Dupri 



argues that he still faces a real danger of self-incrimination if he takes the stand at his 



father's trial. 



                 The   superior   court   adopted   Dupri's   view   of   this   matter   -   ruling   that, 



because of this danger of self-incrimination, Dupri can refuse to take the stand at his 



father's trial.    The State now petitions us to review and reverse the superior court's 



decision. 



                                                   - 2 -                                              2377
 


----------------------- Page 3-----------------------

        The legal issues presented in this case 



                Two questions are presented in this petition for review, both dealing with 



the scope of Alaska's privilege against self-incrimination and the scope of the immunity 



conferred on witnesses under Alaska's witness immunity statute, AS 12.50.101. 



                Under   AS   12.50.101(a)   and   (b),   when   a   witness   invokes   the   privilege 



against self-incrimination (and the court concludes that the privilege has been properly 



invoked), the government can grant the witness immunity, and then the court must order 



the witness to testify.   The final sentence of AS 12.50.101(a) describes the scope of the 



witness's immunity for this compelled testimony: 



                If the witness fully complies with the order [requiring the 

                witness   to   testify],   the   witness   may   not   be   prosecuted   for 

                an offense about which the witness is compelled to testify, 

                except   in   a  prosecution   based   on   perjury,   giving   a   false 

                statement or otherwise knowingly providing false informa- 

                tion, or hindering prosecution. 



Both of the legal controversies in this case center on the meaning of the final clause of 



AS 12.50.101(a):   "except in a prosecution based on perjury, giving a false statement or 



otherwise knowingly providing false information, or hindering prosecution". 



                (A person commits the offense of "perjury" if the person makes a false 



statement under oath, and if the person does not believe this statement to be true.                  See 



AS 11.56.200(a). A person commits the offense of "hindering prosecution" if the person 



"prevents or obstructs, by means of ... deception, anyone from performing an act which 



might aid in the discovery or apprehension" of another person who has committed a 



crime.   See AS 11.56.770(b)(4).) 



                The first controversy in this case involves an immunized witness's potential 



criminal liability for testimony that the witness gives under the grant of immunity. 



                                                  - 3 -                                             2377
 


----------------------- Page 4-----------------------

                 Because the immunity statute expressly allows the State to prosecute an 



immunized witness for perjury, the question arises whether the witness can continue to 



refuse to testify, even after receiving immunity under AS 12.50.101, if the witness has 



reason to believe that the prosecutor will view their impending testimony as knowingly 



false - thus giving rise to the possibility that the State might charge the witness with 



perjury based on this yet-to-be-given testimony. 



                 The   second   controversy   in   this   case   involves   the   immunized   witness's 



potential criminal liability for past acts of perjury or hindering prosecution. 



                As we have explained, the final clause of AS 12.50.101(a) authorizes the 



State to prosecute an immunized witness for "perjury" or for "hindering prosecution" 



despite the grant of immunity.         Is this authorization limited to prosecutions for acts of 



perjury or hindering prosecution that the witness commits by giving false testimony 



under the grant of immunity?   Or does this clause of the statute authorize the State to use 



the witness's immunized testimony (regardless of whether that immunized testimony is 



true or false) as supporting evidence in a prosecution brought against the witness for a 



past  act of perjury or a past  act of hindering prosecution - a crime that the witness 



committed before they gave their immunized testimony? 



                 For the reasons explained in this opinion, we hold that a witness who has 



been granted immunity has no privilege to refuse to testify based on the possibility that 



the State might prosecute them for acts of perjury committed during their immunized 



testimony.      We   further   hold   that   the   final   clause   of   AS   12.50.101(a)   -   the   clause 



authorizing   the   State   to   use   an   immunized   witness's   testimony   in   a   prosecution   for 



perjury or for hindering prosecution - is limited to prosecutions for acts of perjury or 



hindering prosecution that the witness commits by giving false testimony under the grant 



of immunity. 



                                                  - 4 -                                             2377
 


----------------------- Page 5-----------------------

        A more detailed description of the underlying facts 



                As    we   have   already    explained,    Bryan    Corbett    has  been   indicted    for 



assaulting his son, Dupri, and Dupri has been summoned to testify at Bryan Corbett's 



trial.  Although Dupri told school officials that his father assaulted him, he recanted this 



accusation when he testified at the grand jury - denying (under oath) that his father had 



assaulted him. 



                If, at his father's trial, Dupri were to testify that his father had assaulted 



him,    this  would     subject   Dupri    to  criminal    liability  for  perjury    (or,  technically, 



delinquency liability for perjury) under one of two theories:              either the theory that his 



grand   jury   testimony   was   knowingly   false,   or   a   theory   of   "perjury   by   inconsistent 



statements" - i.e., the theory that Dupri's grand jury testimony and his trial testimony 



were     irreconcilable,     and   that   one   of   them    had   to  be   knowingly      false.    See 



AS 11.56.230(a). 



                Apparently because of this possibility that Dupri might incriminate himself, 



the State granted him immunity under AS 12.50.101. However, in the superior court, the 



attorney appointed to represent Dupri argued that, despite this grant of immunity, Dupri 



could still validly claim the privilege against self-incrimination and refuse to testify. 



                Dupri's attorney asserted - and Dupri himself confirmed - that Dupri 



intended   to   repeat   the   exculpatory   testimony   he   offered   to   the   grand   jury. Dupri's 



attorney   pointed   out   that   the   prosecutor   obviously   thought   that   Dupri's   exculpatory 



grand jury testimony was false.  The attorney then argued that if Dupri took the stand at 



his father's trial and repeated that exculpatory testimony, Dupri would run a significant 



risk that the State would prosecute him for perjury - not based on the earlier grand jury 



testimony, but rather based on his new testimony at his father's trial. 



                                                  - 5 -                                             2377
 


----------------------- Page 6-----------------------

                 Superior Court Judgepro tempore  John R. Lohff ultimately agreed with this 



argument.       The    judge   concluded      that,  because    Dupri    intended    to  offer   the  same 



exculpatory testimony he had earlier given to the grand jury,   and   because the State 



clearly thought that this version of events was false, Dupri faced a significant danger of 



self-incrimination if he testified at his father's trial - because the State might prosecute 



him for perjury based on this yet-to-be-given testimony. 



                 In other words, Judge Lohff concluded that even though Dupri had been 



granted immunity, Dupri still retained a privilege against self-incrimination because the 



State retained the ability to prosecute Dupri for knowingly giving false testimony under 



the grant of immunity. 



                 The State has now petitioned us to review and reverse this ruling.  The 



witness, Dupri Corbett, and the defendant, Bryan Corbett, have filed a joint response to 



the State's petition. 



                 (Because the Corbetts have filed a joint response, we do not need to resolve 



the question of whether Bryan Corbett has standing to participate in this litigation, given 



that the litigation is concerned solely with the scope of Dupri Corbett's privilege against 



self-incrimination.) 



                 In the Corbetts' response to the State's petition, they argue that the superior 



court's legal analysis is correct.         That is, they argue that Dupri can validly assert his 



privilege   against   self-incrimination   because   there   is   a   possibility   that   the   State   will 



prosecute   him   for   any   perjury   he   may   commit   while   testifying   under   the   grant   of 



immunity. 



                 However,       the  Corbetts     also  advance     an   alternative    justification    for 



upholding the superior court's ruling.           This alternative argument is based on the final 



clause of AS 12.50.101(a), which authorizes the State to prosecute an immunized witness 



                                                   - 6 -                                              2377
 


----------------------- Page 7-----------------------

for "perjury, giving a false statement or otherwise knowingly providing false informa- 



tion, or hindering prosecution". 



                 The   Corbetts   point   out   that   the   statute   does   not   expressly   limit   these 



prosecutions      to  acts   of   perjury,   false   statement,   or  hindering    prosecution     that   are 



committed by the immunized witness after receiving immunity.   Because of this lack of 



specificity, the Corbetts argue that the statute actually authorizes the State to use the 



witness's   immunized   testimony   as   evidence   to   support   a   prosecution   for  any   act   of 



perjury or hindering prosecution - including prosecutions for conduct that the witness 



engaged   in  before  the   witness   was   granted   immunity.           And,   having   construed   the 



immunity statute in this fashion, the Corbetts argue that the statute is unconstitutional - 



because   it   does   not   give   immunized   witnesses   the   same   scope   of   protection   as   the 



privilege against self-incrimination. 



        Question One:   Does an immunized witness retain the ability to assert the 

        privilege against self-incrimination, and the concomitant right to refuse to 

        testify, based on the possibility that the State will disbelieve the testimony 

        that the witness gives under the grant of immunity, and will prosecute the 

        witness for committing perjury during that immunized testimony? 



                 The answer to this question is "no". 



                 Both    Article    I,  Section   9   of  the  Alaska     Constitution     and   the   Fifth 



Amendment   to   the   United   States   Constitution   bar   the   government   from   compelling 



people   to   give   testimony   that   would   incriminate   them.      A   grant   of   immunity   must 

provide a complete substitute for this privilege against self-incrimination. 1                   Thus, an 



immunized witness must be assured that, with respect to their potential criminal liability, 



    1   State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993). 



                                                   - 7 -                                                2377 


----------------------- Page 8-----------------------

they will stand in exactly the same position - after having testified under the grant of 

immunity - as if they had not been compelled to testify. 2 



                 But a grant of immunity provides no protection for perjury that the witness 

has yet to commit. 3      As this Court noted in DeMan v. State , 677 P.2d 903, 908 (Alaska 



App. 1984), and again in State v. Hofseth, 822 P.2d 1376, 1381-82 (Alaska App. 1991), 



immunized witnesses can properly be prosecuted for perjury they commit during their 

immunized testimony. 4         The United States Supreme Court explained this principle in 



United States v. Apfelbaum: 



                 [T]he Fifth Amendment does not prevent the [government's] 

                 use of [the witness's] immunized testimony [in a prosecution] 

                 for   false   swearing   because,   at   the   time   [the   witness]   was 

                 granted immunity, the privilege [against self-incrimination] 

                 would not have protected him against false testimony that he 

                 later might decide to give. 



Id. , 445 U.S. 115, 130; 100 S.Ct. 948, 957; 63 L.Ed.2d 250 (1980). 



                 In the present case, the superior court upheld Dupri Corbett's assertion of 



the privilege against self-incrimination under the rationale that (1) Dupri intended to 



testify   (under   the   grant   of   immunity)   that   his   father   had  not   assaulted   him;   (2)   the 



    2   Kastigar v. United States , 406 U.S. 441, 453; 92 S.Ct. 1653, 1661; 32 L.Ed.2d 212 



(1972) ("a grant of immunity must afford protection commensurate with [the protection] 

afforded by the privilege [against self-incrimination]"); Hazelwood v. State , 836 P.2d 943, 

946 (Alaska App. 1992); State v. Gonzalez, 825 P.2d 920, 923 (Alaska App. 1992). 



    3    United States v. Apfelbaum, 445 U.S. 115, 128; 100 S.Ct. 948, 955; 63 L.Ed.2d 250 



(1980); State v. Gonzalez, 853 P.2d 526, 530 & n. 4 (Alaska 1993). 



    4   Wayne   R.   LaFave,   Jerold   H.   Israel,   Nancy   J.   King,   and   Orin   S.   Kerr, Criminal 



Procedure  (3rd ed. 2007),  8.11(a), Vol. 3, p. 271;  United States v. Apfelbaum, 445 U.S. 

115, 126-27; 100 S.Ct. 948, 955; 63 L.Ed.2d 250 (1980). 



                                                   - 8 -                                              2377
 


----------------------- Page 9-----------------------

prosecutor already believed that any such testimony would be knowingly false; and thus 



(3) there was a significant possibility that Dupri might be prosecuted for perjury based 



on the statements he made while giving his immunized testimony. 



                This ruling was incorrect as a matter of law.           Even assuming that each of 



the superior court's three premises is true, neither the Alaska Constitution's protection 



against self-incrimination nor the analogous protection afforded by the Fifth Amendment 



would bar the State from prosecuting Dupri for future perjury he might commit while 



testifying under the grant of immunity. 



        Question Two:       Does Alaska's immunity statute allow the State to use a 

        witness's immunized testimony as evidence to support a prosecution for an 

        earlier   act   of   perjury   or   hindering   prosecution   -     in   other   words,   a 

        prosecution   for   conduct   that   the   witness   engaged   in   before   receiving 

        immunity? 



                Again, the answer is "no".         To explain this answer, we must describe the 



difference between "use and derivative use" immunity and "transactional" immunity. 



                About half of the states, as well as the federal government, adhere to the 



doctrine that a witness's privilege against self-incrimination is fully protected   if the 



government   guarantees   that   the   witness's   immunized   testimony   will   never   be   used 



against     the  witness    in  a  criminal    prosecution     -    including    a  protection    against 



"derivative" or indirect use of the immunized testimony (i.e., use of the investigative 

fruits of the immunized testimony). 5         In these jurisdictions, it is lawful for witnesses to 



be prosecuted later for crimes that they discuss in their immunized testimony, so long as 



    5   Wayne   R.   LaFave,   Jerold   H.   Israel,   Nancy   J.   King,   and   Orin   S.   Kerr, Criminal 



Procedure (3rd ed. 2007),  8.11(b), Vol. 3, p. 274; Kastigar v. United States , 406 U.S. 441, 

453; 92 S.Ct. 1653, 1661; 32 L.Ed.2d 212 (1972). 



                                                  - 9 -                                               2377 


----------------------- Page 10-----------------------

the government's evidence in support of that prosecution is completely independent of 



the witness's immunized testimony. 



                Alaska's immunity statute, AS 12.50.101, initially codified this rule of "use 

and derivative use" immunity.           As originally enacted in 1982, 6 the final sentence of 



AS 12.50.101(a) provided: 



                If the witness fully complies with the order [requiring the 

                witness      to  testify], no    testimony     or   other   information 

                compelled under the order, or [any] information directly or 

                indirectly   derived   from     that   [compelled]     testimony   or   ... 

                information, may be used against the witness in a criminal 

                case, except in a prosecution based on perjury, giving a false 

                statement or otherwise knowingly providing false informa- 

                tion, or hindering prosecution. 



(We have put the differing language in italics.) 



                Attentive readers will note that this original version of the statute suffers 



from the same ambiguity as the current version.   The statute authorizes the State to use 



the   immunized   witness's   testimony   in   a   prosecution   for   perjury,   false   statement,   or 



hindering prosecution, but the statute does not expressly limit these prosecutions to acts 



of   perjury,    false  statement,    or   hindering    prosecution     that  are   committed      by  the 



immunized       witness    while   testifying   under    the  grant   of  immunity.     Thus,   at   least 



potentially, the statute authorizes the State to use the witness's immunized testimony as 



evidence to support a prosecution for any prior act of perjury or hindering prosecution 



-  conduct that the witness engaged in before the witness testified under the grant of 



immunity. 



    6   SLA 1982, ch. 143,  23. 



                                                 -  10 -                                              2377 


----------------------- Page 11-----------------------

                However, the legislative commentary to the statute points to the proper 



resolution of this ambiguity.         In this commentary, the legislature declared that if the 



government later pursues a criminal prosecution against the witness, the government 



would be required to show "that its evidence [was] wholly independent of the compelled 



testimony" - a requirement designed to place the witness "in the same position as 

though he had never testified". 7 



                This   commentary   strongly   suggests   that,   even   under   the   original   "use 



immunity" version of the statute, if the State were to prosecute the immunized witness 



for an earlier act of perjury, false statement, or hindering prosecution, the State would 



be required to show that its evidence was not derived in any fashion from the witness's 



immunized testimony. 



                This conclusion is bolstered by the interpretation that the federal courts 



have given to the corresponding federal immunity statute, 18 U.S.C.  6002. 



                The legislative commentary to our immunity statute explains that our statute 

was modeled after 18 U.S.C.  6002. 8           This federal immunity statute contains a perjury 



/ false statement exception that is similar to the exception found in Alaska's statute - 



including   the   same   ambiguity   concerning   past   acts   of   perjury.     The   federal   statute 



declares that, when a witness testifies under a grant of immunity, 



                no testimony or other information compelled under the [grant 

                of   immunity]   ...   or   any   information   directly   or   indirectly 

                derived from such testimony or other information ... may be 

                used    against    the  witness    in  any  criminal    case,   except   a 

                prosecution for perjury, giving a false statement, or otherwise 

                failing to comply with the order. 



    7   1982 House Journal, Supp. No. 64 (June 2nd), p. 17. 



    8   1982 House Journal, Supp. No. 64 (June 2nd), p. 16. 



                                                 - 11 -                                               2377 


----------------------- Page 12-----------------------

                 Despite the ambiguity of the final clause of the federal statute, the statute 



has    been   interpreted     to  prohibit   the   use  of   a  witness's    immunized      testimony     in 



prosecutions for past acts of perjury, and to only allow a witness's immunized testimony 



to   be   used   in   prosecutions   for   acts   of   perjury   that   the   witness   might   commit   while 

testifying under the grant of immunity. 9 



                 Finally, we note that when the wording of a statute is ambiguous, giving 



rise to two possible interpretations, and when one of these interpretations would make 



the statute unconstitutional, an appellate court should reject the problematic interpreta- 



tion   of   the  statute   and  should    interpret   the  statute   in  a  manner    that   preserves   its 

constitutionality (assuming that such an interpretation is reasonable). 10 



                 For these reasons, we conclude that the clause of AS 12.50.101(a) which 



authorizes the use of a witness's immunized testimony in prosecutions for perjury or 



hindering prosecution applies only tofuture  acts of perjury or hindering prosecution - 



crimes that the witness might commit while testifying under the grant of immunity. 



                 In addition, we note that the legislative commentary to AS 12.50.101 also 



addresses, albeit indirectly, the related issue of whether a witness's immunized testimony 



can form half of the basis for a charge of "perjury by inconsistent statements" if the 



immunized        testimony     is  irreconcilable    with   the   witness's    testimony     on  a  former 



occasion. 



    9    United States v. Thomas, 612 F.3d 1107, 1127-28 (9th Cir. 2010);  United States v. 



Black , 776 F.2d 1321, 1327 (6th Cir. 1985). 



    10  See Bonjour v. Bonjour , 592 P.2d 1233, 1237 (Alaska 1979); Larson v. State , 564 



P.2d 365, 372 (Alaska 1977). 



                                                  -  12 -                                               2377 


----------------------- Page 13-----------------------

               (This issue was discussed in DeMan v. State , 677 P.2d 903, 908 (Alaska 



App. 1984).    There, we indicated that this use of immunized testimony was prohibited, 



but our discussion in DeMan was dictum .) 



               Conceivably, one might argue that, in cases where a witness's immunized 



testimony is irreconcilable with the witness's previous testimony on the same subject, 



the crime of perjury by inconsistent statements was not complete until the witness gave 



the   irreconcilable   immunized     testimony   -    and,  thus,  the  offense   of  perjury  by 



inconsistent statements should be considered a "new" crime that was not committed until 



the witness testified under the grant of immunity. 



               But as we have already noted, the legislative commentary to AS 12.50.101 



declares that our statute (in its original form) was modeled after the federal immunity 

statute,   18  U.S.C.     6002. 11   And    when    our  statute  was   enacted   in  1982,  the 



corresponding      federal  statute  had  already   been   construed   to  prohibit  this  use  of 

immunized   testimony. 12     We   therefore   conclude   that   our   immunity   statute   likewise 



prohibits   the  government     from   prosecuting   an  immunized     witness   for  perjury  by 



inconsistent statements based on irreconcilable differences between the testimony that 



the witness gives under a grant of immunity and testimony that the witness gave before 



receiving immunity. 



               We acknowledge that our analysis of these questions relies heavily on the 



legislative   commentary      to  AS   12.50.101,   and   we  further   acknowledge     that  this 



commentary was written to accompany and explain the original version of the statute, 



the version that codified a rule of use and derivative use immunity.  The statute has since 



    11  1982 House Journal, Supp. No. 64 (June 2nd), p. 16. 



    12 See In Re Grand Jury Proceedings , 644 F.2d 348, 350 (5th Cir. 1981); United States 



v. Berardelli, 565 F.2d 24, 28 (2nd Cir. 1977); see also United States v. Alter, 482 F.2d 1016, 

1028 (9th Cir. 1973). 



                                             -  13 -                                         2377 


----------------------- Page 14-----------------------

been   amended   to   codify   a   rule   of   transactional   immunity. 13     The   final   sentence   of 



AS 12.50.101(a) now reads: 



                 If the witness fully complies with the order [requiring the 

                 witness   to   testify],   the   witness   may   not   be   prosecuted   for 

                 an offense about which the witness is compelled to testify, 

                 except   in   a   prosecution   based   on   perjury,   giving     a   false 

                 statement or otherwise knowingly providing false informa- 

                 tion, or hindering prosecution. 



                 The legislature amended the statute to make it conform to the decision of 



the Alaska Supreme Court in State v. Gonzalez ( Gonzalez II), 853 P.2d 526 (Alaska 



1993).    However, as we are about to explain, the switch to transactional immunity was 



not intended to alter or relax the rule that prohibited   any   and all derivative use of a 



witness's immunized testimony. 



                 The   Gonzalez   litigation     arose   shortly   after   the   legislature   enacted   the 



original version of the immunity statute in 1982.               The parties challenging the statute 



argued that the statute did not provide protection that was co-extensive with the Alaska 



Constitution's   privilege   against   self-incrimination   -   that   witnesses   were   not   fully 



protected against self-incrimination by the statute's prohibition on the use and derivative 



use of their immunized testimony.  Instead, the challengers argued, witnesses would be 



fully protected only if they received "transactional" immunity - which is traditionally 



defined as "absolute immunity against future prosecution for the offense[s] to which the 

[witness's compelled testimony] relates". 14 



    13  See SLA 2004, ch. 124,  20-22. 



    14  Counselman v. Hitchcock, 142 U.S. 547, 585-86; 12 S.Ct. 195, 206; 35 L.Ed. 1110 



(1892). 



                                                  -  14 -                                               2377 


----------------------- Page 15-----------------------

                 In State v. Gonzalez ( Gonzalez I), 825 P.2d 920, 936 (Alaska App. 1992), 



this   Court   held   that   a   witness's   immunity   from   the   use   and   derivative   use   of   their 



compelled testimony was not sufficient to fully protect them from the danger of self- 



incrimination - and that, for this reason, when a witness validly invoked the Alaska 



Constitution's       privilege    against    self-incrimination,      the  witness     had   to  be   given 



transactional immunity before they could be compelled to testify. 



                 This Court's conclusion was affirmed by the Alaska Supreme Court the 



following year in Gonzalez II, 853 P.2d 526. For present purposes, the significant aspect 



of Gonzalez II is the supreme court's explanation of why it decided that transactional 



immunity was required by the Alaska Constitution. 



                 The    supreme     court   declared    that   it  was  adopting     the  requirement      of 



transactional   immunity   because,   even   though   use   and   derivative   use   immunity   was 



theoretically sufficient to protect the constitutional rights of immunized witnesses, the 



requirement of derivative use immunity could not be meaningfully enforced: 



                 We do not doubt that, in theory, strict application of use and 

                 derivative use immunity would remove the [witness's] hazard 

                 of   [self-]incrimination.       In    a  perfect   world,    one    could 

                 theoretically trace every piece of [the government's] evidence 

                 to   its  source   and   accurately    police   the  derivative    use   of 

                 [a witness's] compelled testimony.           In our imperfect world, 

                 however,       ...  we   doubt     that   workaday      measures      can, 

                 in practice, protect [a witness] adequately against use and 

                 derivative     use   [of  their  compelled      testimony],     [and]   we 

                 [therefore]     hold   that   [forcing    a  witness    to   testify  after 

                 receiving       only    use     and    derivative      use    immunity] 

                 impermissibly   dilutes   the   protection   of   article   I,   section   9 

                 [of the Alaska Constitution]. 



Gonzalez II, 853 P.2d at 530 (emphasis in the original) (citation omitted). 



                                                  -  15 -                                              2377
 


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                In other words, the requirement of transactional immunity is essentially a 



supplement to the rule of use and derivative use immunity - an added protection to 



make sure that witnesses truly are protected from the derivative use of their immunized 



testimony.  And because of this, even though AS 12.50.101 has been amended to require 



transactional      immunity,     the   legislative    commentary       to  the   original    version    of 



AS 12.50.101 continues to provide persuasive insight into how to interpret the scope of 



the immunity conferred by the statute - particularly, the scope of a witness's protection 



against the use and derivative use of their immunized testimony. 



                Accordingly,   we   hold   that   the   final   clause   of   AS   12.50.101(a)   -   the 



exception for charges of perjury, false statement, and hindering prosecution - does not 



authorize   the   State   to   use   Dupri   Corbett's   yet-to-be-given   immunized   testimony   as 



evidence to support a prosecution for past acts of perjury, false statement, or hindering 



prosecution. 



        Conclusion 



                For the reasons explained in this opinion, the State's petition for review is 



GRANTED, and the challenged ruling of the superior court - the decision that Dupri 



Corbett can validly invoke the privilege against self-incrimination and refuse to testify 



at his father's trial - is REVERSED. 



                                                 -  16 -                                            2377
 

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