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State of Alaska v. Gonzalez et al (6/4/93), 853 P 2d 526
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-5003
) Court of Appeals No. A-4063
) Superior Court Nos.
THE HONORABLE RENE J. ) 3AN-S91-693 Cr.
GONZALEZ, JUDGE OF THE ) 3AN-S91-694 Cr.
SUPERIOR COURT, JILL JAHNKE- )
LELAND, PETER H. LELAND, and )
JEFFREY S. DEGRASSE, ) O P I N I O N
Respondents. ) [No. 3962 - June 4, 1993]
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene Gonzalez, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Anchorage; Charles E. Cole,
Attorney General, Juneau, for petitioner.
Margi Mock, Assistant Public Defender; Ray
Brown, Assistant Public Defender; John B.
Salemi, Public Defender, Anchorage, for
respondent Jeffrey S. DeGrasse. Jeffrey S.
Sauer, Juneau, for respondent Jill Jahnke-
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Article I, section 9 of the Alaska Constitution states
that "[n]o person shall be compelled in any criminal proceeding
to be a witness against himself." This section does not prohibit
compelling a person to testify in a criminal case against another
person, even though the testimony may show that the witness was
guilty of a crime. Surina v. Buckalew, 629 P.2d 969 (Alaska
1981); State v. Serdahely, 635 P.2d 1182 (Alaska 1981) (per
curiam). However, a witness who is compelled to testify must be
granted some type of immunity from prosecution.
There are two types of immunity from prosecution in
current usage. Transactional immunity, the more protective type,
prohibits prosecution of a compelled witness for a crime
concerning which the witness is compelled to testify. The
narrower form, use and derivative use immunity, allows
prosecution of the witness for the crimes referred to in the
compelled testimony, but prohibits the use of the compelled
testimony and its fruits in such prosecutions. Surina, 629 P.2d
at 971, n.2. In Surina and Serdahely, pursuant to our
supervisory powers, we approved of transactional immunity as a
matter of practice but expressed no view as to whether use and
derivative use immunity might also be constitutionally
Alaska Statute 12.50.101, enacted after Surina and
Serdahely were decided, authorizes an order compelling testimony
based on a grant of use and derivative use immunity. In the
present case this statute has been challenged as unconstitutional
under article I, section 9 of the Alaska Constitution. The
superior court and the court of appeals have concluded that the
statute is unconstitutional. We granted the state's petition and
now affirm the decision of the court of appeals.
FACTS AND PROCEEDINGS
On the evening of May 8, 1990, Jill Jahnke-Leland, Carl
Jahnke-Leland, Peter Leland, and Jeffrey DeGrasse were arrested
for the murder of Rick Zaug and the attempted murder of Tom
Moore. Earlier that day Zaug and Moore had sailed from Ketchikan
to Thorne Arm to go fishing. That evening the two men tied their
boat to a public mooring buoy to which another boat was already
tied. Soon thereafter a tragic dispute arose over use of the
buoy. After angry words were exchanged, Moore and Zaug were
fired upon from the shore; Zaug was killed and Moore was
Leland, DeGrasse, and Carl and Jill Jahnke-Leland all
gave taped statements to the police. Leland and DeGrasse
admitted that each had shot at Zaug and Moore from the shore.
Jill Jahnke-Leland stated that after she had words with Zaug and
Moore, she headed toward shore and fired a gun shot in the air to
scare Zaug and Moore. Jill Jahnke-Leland also stated that soon
after she fired that shot into the air, DeGrasse and Leland began
Leland, DeGrasse, and Carl and Jill Jahnke-Leland were
each indicted for first-degree murder, attempted first-degree
murder, and first-degree assault. Jill Jahnke-Leland was
convicted of manslaughter and assault. She appealed to the court
of appeals. Her appeal was pending during the proceedings
hereinafter described and during the presentation and
consideration of this case by this court.1
In the subsequent trial against Leland and DeGrasse,
the state moved to compel Jill Jahnke-Leland to testify under AS
18.104.22.168 Alaska Statute 12.50.101 allows the state to compel
a witness to testify in exchange for immunity from use or deriv
ative use of the compelled testimony in a criminal prosecution.
The trial court denied the state's motion, ruling that AS
12.50.101 violates article I, section 9 of the Alaska
Constitution, which protects individuals against compelled self-
incrimination.3 Leland and DeGrasse were then tried without Jill
Jahnke-Leland's testimony. The trial ended with a hung jury. On
retrial, the state renewed its motion to compel Jill Jahnke-
Leland to testify. The trial court again denied the motion on
constitutional grounds. The state sought review and the court of
appeals affirmed the trial court's decision. State v. Gonzalez,
825 P.2d 920 (Alaska App. 1992). We granted the state's petition
for hearing from this decision.
IMMUNITY AND THE PRIVILEGE AGAINST SELF-INCRIMINATION
This case presents two issues: (1) What is the scope
of the Alaska Constitution article I, section 9 privilege against
self-incrimination? and (2) Does AS 12.50.101 provide immunity
which adequately matches the protection of the constitutional
privilege? We address each issue in turn.
Scope of the Privilege
The issue of the scope of article I, section 9 is a
question of constitutional law which we decide de novo.
Constitutional interpretation follows the "rule that the intent
underlying . . . constitutional language should first be gathered
from the plain meaning of the language itself." Baker v. City of
Fairbanks, 471 P.2d 386, 397 (Alaska 1970). As the court of
appeals recognized, this inquiry is 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. Rather, such authority is considered and, when
appropriate, followed when helpful in discerning the "intention
and spirit of our local constitutional language and [whether the
right invoked is] necessary for the kind of civilized life and
ordered liberty which is at the core of our constitutional
heritage." Id. at 402 (emphasis added).
In the present case, our inquiry is controlled by
Alaska precedent. The state and DeGrasse acknowledge that the
scope of article I, section 9 is set forth in E.L.L. v. State,
572 P.2d 786 (Alaska 1977):
The privilege against self-
incrimination applies where the answers
elicited could support a conviction or might
furnish a link in the chain of evidence
leading to a conviction. But, a witness may
not refuse to testify where there is no real
or substantial hazard of incrimination
. . . .
Id. at 788 (citations omitted). Thus, in Surina v. Buckalew, 629
P.2d 969, 977 (Alaska 1981), we stated: "where the hazard of
incrimination has been removed, the privilege against self-
incrimination is no longer required." Surina, however, left open
the question of what type of immunity would "remove""the hazard
of incrimination." From these authorities we can piece together
the scope of the article I, section 9 protection against self-
incrimination: (1) an individual may not be compelled to give
testimony unless the state has taken measures to remove the
hazard of incrimination; and (2) an individual faces a hazard of
incrimination whenever "the answers elicited could support a
conviction or might furnish a link in the chain of evidence
leading to a conviction."4
AS 12.50.101 and the Scope of the Privilege
We now reach the question at the center of this case:
does a grant of use and derivative use immunity remove the hazard
of incrimination? We do not doubt that, in theory, strict appli
cation of use and derivative use immunity would remove the hazard
of incrimination. See Kastigar v. United States, 406 U.S. 441,
468 (1972) (Marshall, J., dissenting). In a perfect world, one
could theoretically trace every piece of evidence to its source
and accurately police the derivative use of compelled testimony.
In our imperfect world, however, the question arises whether the
judicial process can develop safeguards to prevent derivative use
of compelled testimony that satisfy article I, section 9.
Because we doubt that workaday measures can, in practice, protect
adequately against use and derivative use, we ultimately hold
that AS 12.50.101 impermissibly dilutes the protection of article
I, section 9. Our conclusion rests on two bases.
First, we are persuaded that problems of proof and
ordinary human frailties combine to pose a potent threat to an
individual compelled to testify. The accused faces proof
problems because all evidence regarding use of compelled
testimony necessarily rests in the hands of the state. Human
frailty presents a further obstacle because the accused is
reduced to probing the faded memories and incomplete
recollections of the state's agents in tracing the path of the
compelled testimony from the point where it is given to the point
where it is used. Justice William Brennan expressed these twin
concerns in his dissent in Piccirillo v. New York, 400 U.S. 548,
552 (1971) (Brennan, J., dissenting). According to Justice
all the relevant evidence will obviously
be in the hands of the government -- the
government whose investigation included
compelling the individual involved to
incriminate himself. . . . [T]his argument
does not depend upon assumptions of
misconduct or collusion among government
officers. It assumes only the normal margin
of human fallibility. [People] working in
the same office or department exchange
information without recording carefully how
they obtained certain information; it is
often impossible to remember in retrospect
how or when or from whom information was
Id. at 568; see also Kastigar, 406 U.S. at 469 (Marshall, J.,
For this important reason, we also reject the state's
proffered analogy between compelled testimony and coerced
confessions. In a case involving a coerced confession, the facts
relevant to the "voluntariness"of the confession will be known
and available to both the state and the accused. In the case of
compelled testimony, however, the accused can only speculate as
to how widely her compelled statement has been disseminated.
Procedures and safeguards can be implemented, such as isolating
the prosecution team or certifying the state's evidence before
trial, but the accused often will not adequately be able to probe
and test the state's adherence to such safeguards. This danger
does not subside in the face of even the strictest burden of
proof, for, as Justice Thurgood Marshall aptly noted, although
the government may have the burden of proof, "the government will
have no difficulty in meeting its burden by mere assertion if the
witness produces no contrary evidence." Kastigar, 406 U.S. at
469 (Marshall, J., dissenting).
One of the more notorious recent immunity cases, United
States v. North, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940
(D.C. Cir. 1990) (en banc), cert. denied, 111 U.S. 2235 (1991),
illustrates another proof problem posed by use and derivative use
immunity. North involved the criminal conviction of Oliver North
for his alleged participation in the Iran/Contra Affair. Prior
to his criminal trial, North had been compelled to testify before
congressional committees investigating the Iran/Contra Affair.
This testimony received extensive coverage in the national media.
As required by federal law, North received immunity from use or
derivative use of any testimony given before the committees.
On appeal, the District of Columbia Circuit identified
two witness-related problems with regard to North's compelled
testimony. First, the prosecution could use the compelled
testimony to refresh the recollection of a witness testifying at
North's criminal trial. Id. at 860-61. This use could be
policed by relying on the good faith assurances of the
prosecution and its witnesses that no such use was made of the
compelled testimony. The second problem, however, is more
troublesome. In a case such as North, where the compelled
testimony receives significant publicity, witnesses receive
casual exposure to the substance of the compelled testimony
through the media or otherwise. Id. at 863. In such cases, a
court would face the insurmountable task of determining the
extent and degree to which "the witnesses' testimony may have
been shaped, altered, or affected by the immunized testimony."
Id. We have not been persuaded that procedures exist to probe
the mind of a witness in order to discover such use of compelled
The second basis for our decision is that the state
cannot meaningfully safeguard against nonevidentiary use of
compelled testimony.5 Nonevidentiary use "include[s] assistance
in focusing the investigation, deciding to initiate prosecution,
refusing to plea-bargain, interpreting evidence, planning cross-
examination, and otherwise generally planning trial strategy."
United States v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973).
Innumerable people could come into contact with the compelled
testimony, either through official duties or, in a particularly
notorious case, through the media.6 Once persons come into
contact with the compelled testimony they are incurably tainted
for nonevidentiary purposes. See id. Safeguarding against such
dangers will prove well nigh impossible,
[f]or the paths of information through
the investigative bureaucracy may well be
long and winding, and even a prosecutor
acting in the best of faith cannot be certain
that somewhere in the depths of his
investigative apparatus, often including
hundreds of employees, there was not some
prohibited use of the compelled testimony.
Kastigar, 406 U.S. at 469 (Marshall, J., dissenting).
Nonevidentiary use of compelled testimony can adversely
affect an accused in many ways. When compelled testimony is
incriminating, the prosecution can "focus its investigation on
the witness to the exclusion of other suspects, thereby working
an advantageous reallocation of the government's financial
resources and personnel." Strachan, supra, at 807. The
compelled testimony "may help explain information otherwise
known," which could aid the prosecution in the presentation of
its case. Id. With knowledge of how the crime occurred, the
prosecution may refine its trial strategy to "probe certain
topics more extensively and fruitfully than otherwise." Id.
Indeed, a defendant may choose to relinquish her right to testify
out of fear that the prosecution has honed its cross-examination
with its knowledge of the compelled testimony. Id. Regardless
of whether Jill Jahnke-Leland testified at her first trial, the
prosecution's mere knowledge of her compelled testimony might
significantly alter her decision whether to do so in a possible
retrial. These are only some of the possible nonevidentiary
advantages the prosecution could reap by virtue of its knowledge
of compelled testimony.
Even the state's utmost good faith is not an adequate
assurance against nonevidentiary uses because there may be "non-
evidentiary uses of which even the prosecutor might not be
consciously aware." State v. Soriano, 684 P.2d 1220, 1234 (Or.
App. 1984) (only transactional immunity can protect state
constitutional guarantee against nonevidentiary use of compelled
testimony). We sympathize with the Eighth Circuit's lament in
McDaniel that "we cannot escape the conclusion that the
[compelled] testimony could not be wholly obliterated from the
prosecutor's mind in his preparation and trial of the case."
McDaniel, 482 F.2d at 312. This incurable inability to
adequately prevent or detect nonevidentiary use, standing alone,
presents a fatal constitutional flaw in use and derivative use
We are not alone in construing a state constitutional
guarantee to require transactional immunity in exchange for
compelled incriminating testimony. Courts in Hawaii, Massachu
setts, and Oregon have reached the same result. See State v.
Miyasaki, 614 P.2d 915, 922-23 (Hawaii 1980); Attorney General v.
Colleton, 444 N.E.2d 915, 921 (Mass. 1982); Soriano, 684 P.2d at
1232.7 In each case, the court relied, in part or in whole, on
dangers presented by the inability to adequately enforce a ban on
derivative use. See Miyasaki, 614 P.2d at 923-24; Colleton, 444
N.E.2d at 920-21; Soriano, 684 P.2d at 1233-34.
Because of the manifold practical problems in enforcing
use and derivative use immunity we cannot conclude that AS
12.50.101 is constitutional. Mindful of Edward Coke's caution
that "it is the worst oppression, that is done by colour of
justice,"8 we conclude that use and derivative use immunity is
1 Shortly before the publication of this opinion the court
of appeals affirmed her conviction and remanded her sentence.
Jahnke-Leland v. State, Mem. Op. & J. No. 2675 (Alaska App.,
April 21, 1993). The progress of Jill Jahnke-Leland's appeal is
relevant if her conviction becomes final before the state compels
her to testify. In that event, Jill Jahnke-Leland would no
longer be subject to conviction or punishment on account of her
compelled testimony. Without the threat of conviction or
punishment, an individual may no longer invoke the protection of
the privilege against self-incrimination. E.L.L. v. State, 572
P.2d 786, 788 (Alaska 1977) ("a witness may not refuse to testify
where there is no real or substantial hazard of incrimination.").
Additionally, if Jill Jahnke-Leland was compelled to testify
while her appeal was pending, transactional immunity would not
invalidate her prior conviction; instead, transactional immunity
would only bar retrial if her conviction was reversed on appeal.
See State v. Runions, 665 P.2d 1358, 1360 (Wash. 1983) (citing
Katz v. United States, 389 U.S. 347 (1967)).
2 AS 12.50.101 states, in relevant part, that the state may
compel testimony upon the condition that:
no testimony or other information compelled
. . . , or information directly or indirectly
derived from that testimony or other 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 information, or hindering
3 Article I, section 9 of the Alaska Constitution reads as
Section 9. Jeopardy and Self-
Incrimination. No person shall be put in
jeopardy twice for the same offense. No
person shall be compelled in any criminal
proceeding to be a witness against himself.
4 This scope largely parallels the scope the Supreme Court
has set for the Fifth Amendment. Kastigar v. United States, 406
U.S. 441, 453 (1972). None of the parties have suggested, nor do
we consider, Justice William O. Douglas' position that the
privilege "put[s] it beyond the power of [government] to compel
anyone to confess his crimes." Id. at 467 (emphasis added)
(Douglas, J., dissenting); see Ullmann v. United States, 350 U.S.
422, 446 (1956) (Douglas, J., dissenting).
At times, DeGrasse claims to broaden the scope of article I,
section 9 by stating that a grant of immunity must "place [the
witness] in the same position as if he remained silent." The
Supreme Court has rejected this formulation of the self-
incrimination guarantee, instead favoring an interpretation
similar to the one stated above. See United States v. Apfelbaum,
445 U.S. 115 (1980). This formulation also begs a very important
question: put in the same position with respect to what interest?
Clearly certain interests, such as keeping the compelled
testimony from coming to public light, could not be achieved
without implementing extraordinary means. The standard "the same
position as if he remained silent"must have a specific reference
point. In the present case, that reference point is
incrimination. Thus, a meaningful reading of the "same position"
argument is that the person compelled to testify must be put in
the same position with regard to the possibility of incrimination
as if he had remained silent. If the person had remained silent,
he would have faced no hazard of incrimination from his own
words. Thus, DeGrasse's seemingly restrictive standard really
reduces to this court's prior standard: remove the hazard of
incrimination due to the compelled person's own words.
5 Although both courts and commentators divide on whether a
constitutional protection against self-incrimination should
prohibit nonevidentiary use of compelled testimony, see, e.g.,
United States v. Byrd, 765 F.2d 1524, 1530-31 (11th Cir. 1985)
(allowing nonevidentiary use); United States v. McDaniel, 482
F.2d 305, 311 (8th Cir. 1973) (prohibiting nonevidentiary use);
Gary S. Humble, Nonevidentiary Use of Compelled Testimony: Beyond
the Fifth Amendment, 66 Tex. L. Rev. 351, 371-83 (1987) (urging
that nonevidentiary use be allowed); Kristine Strachan, Self-
Incrimination, Immunity, and Watergate, 56 Tex. L. Rev. 791, 806-
10 (1978) (urging that nonevidentiary use be prohibited), the
state concedes that the Alaska Constitution prohibits such use.
Additionally, we believe that nonevidentiary use could "furnish a
link in the chain of evidence leading to a conviction,"E.L.L.,
572 P.2d at 788, or at least forge and shape that chain,
sufficiently to fall within the conduct prohibited by article I,
6 This situation is further complicated if potential jurors
are exposed to the witness' compelled testimony through wide
dissemination in the media.
7 But see, e.g., State v. Strong, 542 A.2d 866, 871-72
(N.J. 1988); People v. Johnson, 507 N.Y.S.2d 791, 793 (Sup.
1986); Welsh v. Commonwealth, 416 S.E.2d 451, 455 (Va. App.
8 1 Lord Edward Coke, The Second Part of the Institutes of
the Laws of England 48 (1797).