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State v. Finley (11/14/2014) ap-2433

State v. Finley (11/14/2014) ap-2433

                                                   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,  

                                                                  Court of Appeals No. A-11552
  

                                   Petitioner,                  Trial Court No. 3AN-10-3656 CR
  



                          v.  



                                                                             O P I N I O N 

DEMETRIUS J. FINLEY,  



                                   Respondent,  

                          and                                    No. 2433 - November 14, 2014  



THOMAS B. DICKSON,  



                          Real Party in Interest.  



                 Petition  for  Review  from  the  Superior  Court,  Third  Judicial  

                 District, Anchorage, Gregory Miller, 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.    Kevin  G.  Brady,  Law  Office  of  KeriAnn  

                                                                        

                 Brady, Anchorage, for the Respondent.  Evan Chyun, Assistant  

                                                                     

                 Public     Advocate,      and    Richard     Allen,     Public    Advocate,  

                 Anchorage, for the Real Party in Interest.  



                 Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                         

                 District Court Judge. *  

                                               



                 Judge MANNHEIMER.  



    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                    The State of Alaska is prosecuting Demetrius J. Finley for a drug offense,  

                                                                                            



and the State wishes to call Thomas B. Dickson as a witness at Finley's trial.  The State  



concedes that Dickson's testimony would be self-incriminatory, so the State has granted  

                      



"transactional" immunity to Dickson - promising him that he will not be prosecuted by  

                                                                                             



the  State  of  Alaska  for  any  crime  he  is  compelled  to  testify  about.    The  Alaska  

       



Constitution requires this complete immunity when a witness is compelled to give self- 



incriminating testimony.  State v. Gonzalez, 853 P.2d 526 (Alaska 1993).  



                    But Dickson's testimony would also be self-incriminatory under the federal  



drug laws - and that is the source of the legal controversy in this case.  



                    Under the Fifth and Fourteenth Amendments to the federal constitution,  



whenever one state grants immunity to a witness and compels the witness to give self- 

                                                                                 



incriminating testimony, all other American jurisdictions (state and federal) are forbidden  



from using the witness's testimony against them.  The witness is protected from either  

                                                                            



direct or "derivative" use of their testimony (such as using the testimony to develop new  



evidence or new investigative leads).  Murphy v. Waterfront Commission of New York  

                   



Harbor , 378 U.S. 52, 79; 84 S.Ct. 1594, 1609; 12 L.Ed.2d 678 (1964).  



                    But   this   "use"   immunity   does   not   completely  prevent   these   other  

                                   



jurisdictions from prosecuting the witness for the crimes revealed by their testimony.  



Other states and the federal government remain empowered to prosecute the witness, so  

                                                                                             



long  as  their  evidence  is  derived  wholly  independently  of  the  witness's  compelled  

                                                                 



testimony.  



                    The witness in this case, Dickson, argues that the transactional immunity  

                                        



required by the Alaska Constitution (as construed in State v. Gonzalez) covers not only  



criminal prosecutions initiated by the State of Alaska and its political subdivisions, but  

                                                                                 



also criminal prosecutions initiated by any other American jurisdiction.  Thus, Dickson  

                                                                         



contends, he can refuse to testify at Finley's trial as long as he faces any possibility of  

                                                                                                              



                                                             - 2 -                                                       2433
  


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

prosecution by the federal government (or by any other state) for the drug offense that  

                                                        



he will be compelled to testify about.   



                   According to Dickson, the State can not compel him to testify unless the  



State guarantees that he will receive transactional immunity - not just the use immunity  

                                                                                        



guaranteed  by  Murphy  v.  Waterfront  Commission  -  from  every  other  American  



jurisdiction where he might face criminal liability because of his testimony.  



                   The superior court agreed with Dickson and ruled that he could not be  

                                                                                                                 



compelled to testify unless the State obtained a guarantee of transactional immunity for  

                                                    



Dickson from the federal government.   



                   For the reasons explained in this opinion, we hold (as a matter of Alaska  

                                                             



constitutional law) that the result reached by the United States Supreme Court in Murphy  

                                                                    



v. Waterfront Commission is the correct resolution of this problem of inter-jurisdictional  



immunity.  Dickson is entitled to transactional immunity from prosecution by the State  

                                                                                                          



of Alaska, but he is only entitled to use immunity from prosecution by other American  



jurisdictions.   



                   We therefore reverse the ruling of the superior court:  Dickson  can be  

                                                                                                                 



compelled to testify because of the State of Alaska's grant of immunity.  



          The procedural history of this litigation  



                   Demetrius Finley stands accused of second-degree controlled substance  



misconduct - more specifically, delivery of heroin.  Thomas Dickson was involved in  



the heroin transaction with Finley, and Dickson ultimately pleaded  guilty to fourth- 



degree controlled substance misconduct (possession of heroin).  As part of his plea  



bargain, Dickson agreed to testify against Finley.  



                                                         - 3 -                                                     2433
  


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

                    Later, however, Dickson announced that he would not testify against Finley  



- that, instead, he intended to assert his privilege against self-incrimination.   



                    The State declared that it was willing to grant transactional immunity to  



Dickson - that is, complete immunity from prosecution by the State of Alaska for any  

                                                                                                                      



crimes he was compelled to testify about. And, as we have already explained, if Dickson  

                                                                                      



is compelled to testify under the State of Alaska's grant of immunity, he is automatically  

                                                                         



entitled to immunity from any use of his testimony (either direct use or derivative use)  



in any federal court or in the courts of any other state.   



                    But Dickson argued that this use immunity was not a sufficient protection  



against his potential federal prosecution for drug offenses.  He asserted that his rights  

                                                                          



under the Alaska Constitution would not be satisfied unless he received transactional  

                                                                                 



immunity from the federal government.  



                    The superior court agreed with Dickson.  The court noted  that  the use  

                                                                                                              



immunity guaranteed by Murphy v. Waterfront Commission did not amount to a complete  



immunity from federal prosecution for his drug offense.  And the court ruled that, as long  

                                                          



as Dickson faced potential prosecution by any other jurisdiction for the crimes revealed  

                                                                                               



by his testimony, it would violate the Alaska Constitution to compel him to testify.  Thus,  



the  court  declared,  Dickson  could  continue  to  assert  his  privilege  against  self- 

                



incrimination (and could properly refuse to testify at Finley's trial) unless the federal  

                                                     



government granted Dickson transactional immunity for the crimes he testified about.  

                                



                    The State petitioned this Court to review the superior court's ruling.  This  

                                                                                                   



Court  granted  the  State's  petition,  ordered  formal  briefing,  and  stayed  the  criminal  



proceedings against Finley.  



                    (Because Finley and Dickson have joined in a single brief, we do not need  

                                                                                                          



to resolve the question of whether Finley has standing to participate in this litigation,  



                                                            - 4 -                                                       2433
  


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

given that the litigation is concerned solely with the scope of Dickson's privilege against     

self-incrimination.) 1  



          The two types of witness immunity recognized under American law  



                                                                                                              

                    Both the Fifth Amendment to the United States Constitution and Article I,  



Section  9  of  the  Alaska  Constitution  guarantee  a  right  against  self-incrimination.  



Likewise, under both federal law and Alaska law, a witness whose testimony would be  

                                                                                                    



self-incriminating can nevertheless be forced to testify if the government grants the  

witness immunity. 2  

                               



                                      

                    But federal and state law differ as to the type of immunity that is required  



before a witness can be forced to give self-incriminating testimony.  

                    Under federal law and the law of about half the states, 3 the government  



                                                                          

must grant "use" immunity to the witness - i.e., protection against (1) direct use of the  



                                                                                                              

witness's testimony and (2) any derivative use of the testimony (e.g., use of any evidence  



or investigative leads developed as a result of the testimony).  See Kastigar v. United  



States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).  



                                                                           4 

                    On the other hand, under Alaska law                                                  

                                                                             and the law of the other half of the  



states,  the  government  must  grant  "transactional"  immunity  to  the  witness  -  i.e.,  



     1    See  State v. Corbett, 286 P.3d 772, 775 (Alaska App. 2012).  



     2    See 18 U.S.C.  6002 and AS 12.50.101.  



     3    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.  See also the synopsis of the case law  

contained in Commonwealth v. Swinehart, 664 A.2d 957, 965-67 (Pa. 1995).  



     4    State v. Gonzalez, 853 P.2d 526, 533 (Alaska 1993).  



                                                             - 5 -                                                       2433
  


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

complete immunity from prosecution (no matter where the government's evidence comes  



from) for any criminal offense that the witness is compelled to testify about.  



                   As this Court explained in State v. Corbett, 286 P.3d 772, 779 (Alaska App.  

                                                                                 



2012), the requirement of transactional immunity is essentially a supplement to the rule  



of use immunity - "an added protection to make sure that witnesses truly are protected  



from the derivative use of their immunized testimony."    



          The legal problem presented in this case:  cross-jurisdictional immunity  



                   If  a  person's  conduct  subjects  them  to  criminal  liability  in  only  one  

                                                                                              



jurisdiction - i.e., liability only under federal law, or only under the law of a single state  

                                                                                                              



- then the law of that jurisdiction will prescribe the type of immunity that the person  

                                                           



must  receive  before  they  can  be  forced  to  relinquish  their  privilege  against  self- 



incrimination.  But the situation is more complicated if a person's conduct potentially  

                              



subjects them to criminal liability in more than one jurisdiction.   



                   The United States Supreme Court initially took the position that American  



jurisdictions  (both  state  and  federal)  were  not  bound  by  the  immunity  granted  to  a  



witness by the authorities of another jurisdiction.  Thus, any other jurisdiction was free  

                                       



to use the witness's compelled testimony as a basis for a criminal prosecution.   

                   This principle was first enunciated in 1931 in United States v. Murdock, 5  

                            



where the Supreme Court held that a person who was called to testify in federal court  



could not claim the privilege against self-incrimination based solely on the danger that  

                



their testimony might subject them to criminal liability under state law.   



                   The Supreme Court noted that, in earlier decisions, it had ruled that (1) a  



person who was granted immunity by federal prosecutors could properly be compelled  

                                                                   



     5    284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931).  



                                                           - 6 -                                                     2433
  


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

to testify even though this grant of immunity did not protect the person against state     



prosecution; and likewise (2) a person who was granted immunity by state prosecutors     



could properly be compelled to testify even though these state officials had no power to                              



give the witness protection against federal prosecution.                                                 Id. , 284 U.S. at 149, 52 S.Ct. at  



65.   



                         The rule established by these decisions, the Supreme Court declared, was  

                                                                                                      



that the privilege against self-incrimination was fully satisfied if the person was granted  

                                                                                                                          



complete  immunity  from  prosecution  under  the  laws  of  "the  government  [that  was]  



compelling the witness to answer".  Ibid .  



                         Thirteen years later, in Feldman v. United States , 322 U.S. 487, 64 S.Ct.  

                                                       



 1082, 88 L.Ed. 1408 (1944), the Supreme Court held that when a person was compelled  

                                                       



to give testimony in state court under a state grant of immunity, that person's testimony  

               



could be used by federal authorities to prosecute the person for a violation of federal  

                                                                            

law. 6  

                    



                                                                                                                              

                         (See also Knapp v. Schweitzer , 357 U.S. 371, 374-75; 78 S.Ct. 1302, 1304- 



05; 2 L.Ed.2d 1393 (1958), which held that state authorities could compel a person to  



                                                                                                                       

testify by granting the person immunity from state prosecution, even though the person's  



testimony would be incriminating under federal law.)  



                         The approach to witness immunity and self-incrimination expounded in  



                                                                                                                                      

Murdock and Feldman  - i.e., the principle that no jurisdiction is bound by the immunity  



                                                                                          

granted to a witness by another jurisdiction - was the controlling law in Alaska when  



                                                                                                 

Alaska was a federal territory.  More significantly, it was the law in Alaska in 1955-56,  



                                                                                  7  

when the Alaska Constitution was drafted.    



       6     322 U.S. at 493, 64 S.Ct. at 1084-85.  



       7     http://en.wikipedia.org/wiki/Constitution_of_Alaska .  



                                                                             - 7 -                                                                         2433
  


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

                   But in 1964, in Murphy v. Waterfront Commission of New York Harbor ,  



378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the United States Supreme Court  



altered course and declared that the federal government and the several states were bound  

                                                                                    



to recognize the immunity granted to a witness by authorities in another jurisdiction.  



                   The petitioners in Murphy  were called to give testimony about a work  

                                                           

stoppage at New York Harbor. 8  

                                                They were given immunity for their testimony under  



the laws of New York and New Jersey, but they still refused to answer questions, on the  

                                                                                                    

ground that their answers would subject them to federal criminal liability. 9 

                                                                                                          Because the  



petitioners' legal argument had already been rejected in  Murdock and  Feldman , the  



petitioners  were  held  in  contempt  -  and  their  case  ultimately  made  its  way  to  the  

Supreme Court. 10  

                              



                                        

                   The Supreme Court was re-thinking its decisions in Murdock and Feldman  



                                                                                                  11 

                             

because  the  Court  was  getting  ready  to  rule  (in  Malloy  v.  Hogan                          )  that  the  Fifth  



                                 

Amendment privilege against self-incrimination was binding on the states (under the due  



process  clause  of  the  Fourteenth  Amendment).    Because  of  its  impending  decision  



                                                                                                              

broadening the reach of the Fifth Amendment, the Supreme Court granted review in  



Murphy v. Waterfront Commission  to re-examine the question of "whether, absent an  



immunity provision, one jurisdiction in our federal structure may compel a witness to  



give  testimony  which  might  incriminate  him  under  the  laws  of  another  [American]  

jurisdiction."  12  

                         



     8    Murphy , 378 U.S. at 53, 84 S.Ct. at 1596.  



     9    Id. , 378 U.S. at 53-54, 84 S.Ct. at 1596.  



     10   Id. , 378 U.S. at 54, 84 S.Ct. at 1596.  



     11   378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).  



     12   Murphy , 378 U.S. at 54, 84 S.Ct. at 1596.  



                                                          - 8 -                                                     2433
  


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

                       In Murphy , the Supreme Court concluded that the Fifth and Fourteenth   



Amendments required cross-jurisdictional recognition of any grant of immunity made  

by the federal government or by any state government. 13 14  

                                                                                                     



                                                                                                                      

                       But this holding raised yet another question:  what kind of cross-jurisdic- 



tional recognition did the federal constitution require?  



                      Murphy was decided in 1964.  At that time (that is, eight years before the  

                                                                                                                        

Supreme  Court  adopted  a  rule  of  use  immunity  in  Kastigar  v.  United  States 15),  



the accepted view was that a person could not be compelled to give up their privilege  

                                                   



against self-incrimination unless they received transactional immunity - full immunity  



from prosecution for any crime that they were compelled to testify about.  (Indeed, the  

                                                                                



petitioners in Murphy had been granted transactional immunity by the States of New  

York and New Jersey before they were ordered to testify.) 16  



      13   Id. , 378 U.S. at 77-78, 84 S.Ct. at 1609.  



      14   The  Murphy  Court  also  declared  that  Murdock  and  Feldman  had  been  wrongly  



decided - that those decisions were "unsupported by history or policy".                                              Murphy , 378 U.S.  

at 77, 84 S.Ct. at 1609.  But more recently, in United States v. Balsys, 524 U.S. 666, 683-88;  

                                                                                                                

 118 S.Ct. 2218, 2228-2230; 141 L.Ed.2d 575 (1998), the Supreme Court repudiated this  

                                                                                                                

portion  of  the  Murphy  decision.    The  Court  re-affirmed  the  principle  that  the  Fifth  

                                                                    

Amendment  does  not  protect  witnesses  from  potential  criminal  liability  in  jurisdictions  

outside  the  United  States  (i.e.,  other  countries),  and  the  Court  declared  that  the  correct  

                                                               

reading  of  Murphy  was  that,  for  purposes  of  the  Fifth  and  Fourteenth  Amendments,  all  

                                                                                            

American jurisdictions were to be viewed as one regarding the issue of immunity.  



      15   406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).  



      16   Murphy ,  378  U.S.  at  53,  84  S.Ct.  at  1596.    (This  fact  is  recited  more  clearly  in  

                                                                                                

Kastigar v. United States , 406 U.S. 441, 457; 92 S.Ct. 1653, 1663; 32 L.Ed.2d 212 (1972).)  

                                                                               



                                                                     - 9 -                                                                2433
  


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

                      But the Murphy Court did not require the state and federal governments to   



extend transactional immunity to witnesses who were compelled to testify under a grant                                              



of immunity in another jurisdiction. Instead, the Supreme Court declared that the federal      



constitution required these other jurisdictions to extend use immunity  to these witnesses:   



                        

                                                                                       

                      [W]e [declare] the constitutional rule to be that a state witness  

                      may  not  be  compelled  to  give  testimony  which  may  be  

                                                                                 

                      incriminating   under   federal   law   unless   the   compelled  

                                        

                      testimony  and  its  fruits  cannot  be  used  in  any  manner  by  

                      federal officials [to support] a criminal prosecution against  

                                                                                               

                      him.  ...  [T]he Federal Government must be prohibited from  

                      making any such use of compelled testimony and its fruits.  



Murphy , 378 U.S. at 79, 84 S.Ct. at 1609.   



                      The Court declared that it was adopting this rule of use immunity as a  



means of achieving two ends:  "to implement [the] constitutional [privilege] and [to]  



accommodate the interests of the State and Federal governments in investigating and  

prosecuting crime". 17                                                                                        

                                      The Court explained that this "exclusionary rule" - i.e., the rule  



                                                                

of use immunity - "leaves the [state] witness and the Federal Government in substan- 



tially the same position as if the witness had claimed his privilege in the absence of a  



                                                                                       

state  grant  of  immunity",  while  at  the  same  time  "permitting  the  States  to  secure  



                                                                                          18  

[testimony] necessary for effective law enforcement".                                          



      17    Ibid.   



      18   378 U.S. at 79, 84 S.Ct. at 1609-1610.  



                                                                  - 10 -                                                              2433
  


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

            Why we reverse the superior court's ruling in this case  



                       The  issue  in  this  case  is  whether  Article  I,  Section  9  of  the  Alaska  



Constitution requires a different answer to the inter-jurisdictional immunity question that  



the Supreme Court addressed in Murphy .  



                       Our state constitution was drafted in the mid-1950s, when Alaska was still  

                                                                                                                                       



a  federal territory.   At that time, the rule under federal law  -  as illustrated  by  the  

                                                                                                                      



 Supreme  Court's  decisions  in  Murdock  and  Feldman    -  was  that  (1)  the  federal  



government and the several states were not required to honor grants of immunity made  



by another American jurisdiction, and (2) a person who was granted immunity by one  



jurisdiction could not refuse to testify based on the possibility that their testimony might  

                                                                                                                         



incriminate them in a different jurisdiction.  



                       We  have  found  nothing  in  the  record  of  the  Alaska  constitutional  



convention  to  suggest  that  the  delegates  wished  to  depart  from  this  rule  when  they  

drafted the self-incrimination provision of Article I, Section 9. 19  We therefore conclude  

                    



that Article I, Section 9 - at least as it was originally understood - did not apply to  

                                                                                                                                      



potential criminal prosecutions under the laws of other jurisdictions.  



                       However, this conclusion does not necessarily resolve this case.   



                       In State v. Gonzalez, when our supreme court was asked to decide whether  

                                                                                                             



a grant of use immunity was sufficient to supplant the protection of Article I, Section 9,  

                                                                   



the court declared that the answer to this question "[was] not controlled by any one  

                                                                                                                                      



 source of authority, such as United States Supreme Court precedent[,] or an appeal to the  

                                                                                                                           



intent of the framers of the Alaska Constitution."  853 P.2d at 529.  The supreme court  

                                                                                                                     



      19    See the discussion of the self-incrimination clause that occurred on Day 44 of the                                       



convention,  as  well  as  the  commentary  to  the  self-incrimination  clause  contained  in  

Appendix V to the convention minutes.   



                                                                     - 11 -                                                                 2433
  


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

acknowledged that an appellate court should consider those sources "when appropriate",  

                                                         



but the court declared that its real task was to "[discern] the intention and spirit" of the  

                                                                                            



constitutional provision to determine what sort of protection was "necessary for the kind  

                                                                       



of civilized life and ordered liberty which is at the core of our constitutional heritage."  

                                                                    



Ibid.  



                    We  therefore  believe  that  we  must  look  beyond  the  drafters'  original  



understanding of Article I, Section 9 to see if evolving standards of "ordered liberty"  

                                           



require a different reading of the self-incrimination clause.  



                    We begin by looking at how other "transactional immunity" states have  



answered this question - i.e., other states whose law requires a grant of transactional  



immunity to supplant a witness's assertion of the privilege against self-incrimination.  

                                     



                    Massachusetts, Oregon, and Mississippi are transactional immunity states,  

                                                          



and the supreme courts of those states have either held or indicated that when a witness  

                                                                                                            



faces potential criminal liability in another jurisdiction, the use immunity guaranteed by  

                                     



the Fourteenth Amendment (as construed in Murphy) is sufficient.  



                    The Massachusetts Supreme Court directly addressed this issue in Baglioni  



v.  Chief of Police of Salem, 656 N.E.2d 1223, 1226 (Mass. 1995), and again in In re  

                                                               



 Vaccari, 955 N.E.2d 266, 269-270 (Mass. 2011).  The Massachusetts court held that a  

                                                                                                           



witness called to testify in Massachusetts has no right to insist on transactional immunity  

                                                                         



from federal prosecution, even though the witness can demand transactional immunity  

                                                                 



from prosecution by Massachusetts authorities.  



                    See also State v. Soriano, 684 P.2d 1220, 1234 (Or. App. 1984) (en banc),  

                                                                                   



and  Wright v. McAdory, 536 So.2d 897, 904 (Miss. 1988).  



                    Dickson and Finley have not directed our attention to any cases reaching  



a contrary result.  The fact that, even among transactional immunity jurisdictions, no  

                                                                                           



American court has adopted the rule proposed by Dickson and Finley suggests that their  

                                                                           



                                                             - 12 -                                                        2433
  


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

expansive view of the privilege against self-incrimination is not an essential component  

                                                                                           



of the "ordered liberty ... at the core of our constitutional heritage".  Gonzalez, 853 P.2d  

                                                       



at 529.   



                    We  further  believe  that  the  rule  proposed  by  Dickson  and  Finley  is  

                                       



inconsistent with our state's sovereignty within a federal system.   



                    If we endorsed the interpretation of Article I, Section 9 that Dickson and  

                                                                                          



Finley propose (and that the superior court adopted) - the rule that no witness can be  

                                                                                                                         



compelled to testify absent a guarantee of transactional immunity from every sovereign  

                                                                                    



whose laws the witness might have violated - then the Alaska government's power to  

                                                                                                



grant immunity would often hinge on the discretionary decision of another sovereign -  



or, conceivably, the discretionary decisions of several other sovereigns.   



                    We live in an age where interstate travel (indeed, international travel) is a  

                                                                                  



regular  occurrence  for  many,  and  where  the  Internet  affords  people  the  ability  to  



communicate instantly across state and national boundaries.  Because of this, personal  

                                                                                                               



and  business  activities  often  span  the  borders  of  several  states,  and  those  activities  

                                                                                                            



potentially involve both state law and federal law.   



                    Thus, there will be many occasions when a criminal activity or enterprise  

                                                           



affects not just the interests of the people of Alaska, but also the interests of one or more  

                                                                                    



other sovereigns within our federal system.  Under the rule that Finley and Dickson  

                                                        



propose,  no  grant  of  immunity  made  by  Alaska  officials  would  be  constitutionally  



sufficient unless every other interested sovereign also voluntarily extended transactional  



immunity to the witness.  As a consequence, our own state's interest in compelling the  

                                                                                                         



testimony needed to investigate and prosecute these criminal activities would be held  

                                                                                               



hostage to the competing interests of other sovereigns.  



                    For these reasons, even though we have the authority to construe Article  



I, Section 9 of our constitution more broadly than the other transactional immunity states  



                                                             - 13 -                                                        2433
  


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

have construed their own law, we conclude that those states struck the proper balance  



when they endorsed the approach taken by the United States Supreme Court in                                        Murphy  



v.  Waterfront Commission.  



                    A witness who is granted immunity, and who is compelled to testify despite  

                                              



a  claim  of  self-incrimination,  is  entitled  to  protection  from  prosecution  in  other  



jurisdictions  -  but  not  an  absolute  protection  that  is  beyond  the  power  of  Alaska  



authorities  to  grant.    As  the  Supreme  Court  explained  in  Murphy ,  the  law  must  



implement the constitutional privilege against self-incrimination while at the same time  

                                                                                                            



"accommodat[ing] the interests of the State and Federal governments in investigating and  



prosecuting crime".  Murphy , 378 U.S. at 79, 84 S.Ct. at 1609.  We conclude that the  

                                                                                      



correct way to balance these interests is the law as it currently stands:  under the Alaska  

                                                         



Constitution,  the  witness  receives  transactional  immunity  from  prosecution  for  any  



violation of Alaska's criminal law, while under the Fifth and Fourteenth Amendments,  

                                                     



the witness is guaranteed use immunity for their testimony in every other American  



jurisdiction.  



          Conclusion  



                    We  hold  that  Dickson  can  be  compelled  to  testify  under  the  State  of  

                                                                                                                    



Alaska's grant of transactional immunity, even though Dickson will receive only use  

                        



immunity from the federal government and from other states whose laws Dickson has  



potentially violated.  



                    The decision of the superior court is REVERSED.  



                                                           - 14 -                                                       2433
  

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