State v. Carroll

515 P.2d 1299, 83 Wash. 2d 109, 1973 Wash. LEXIS 604
CourtWashington Supreme Court
DecidedNovember 21, 1973
Docket42707
StatusPublished
Cited by26 cases

This text of 515 P.2d 1299 (State v. Carroll) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carroll, 515 P.2d 1299, 83 Wash. 2d 109, 1973 Wash. LEXIS 604 (Wash. 1973).

Opinions

Hamilton, J.

In 1971, a grand jury was convened in King County for the purpose of investigating possible bribery and corruption among police and public officials. As a result of such investigations, several indictments issued. .The six defendants-respondents1 in the instant matter were subpoenaed to attend upon and did testify under oath before the grand jury. Each was advised, before testifying, of: (a) the purpose of the investigation, (b) their right to counsel, and (c) their right to remain silent.

[111]*111Respondents were subsequently indicted. Each was charged with offenses in the nature of or offending against the laws relating to bribery or corruption. All joined in a motion to dismiss the indictments upon the basis that, pursuant to RCW 9.18.080 and RCW 10.52.090, they were respectively afforded statutory immunity from prosecution as a result of their appearance and testimony before the grand jury concerning the offenses charged. The trial court granted the motions and dismissed the indictments. The state sought review by this court.

Following a consideration of the briefs and oral arguments of counsel for the state and the respondents, this court issued an order affirming the trial court’s order of dismissal. We now set forth the rationale for the order of affirmance.

The contentions of the respective parties propound three principal questions: (1) Do RCW 9.18.080 and RCW 10.52.090, the immunity statutes here involved, apply to respondents’ testimony before a grand jury? (2) Must an individual testifying pursuant to such statutes first claim his privilege against self-incrimination, guaranteed by the fifth amendment to the United States Constitution, as a condition precedent to receiving the statutory immunity? (3) Do RCW 10.27.120 and RCW 10.27.130, the provisions of the 1971 criminal investigatory act relating to self-incrimination in grand jury proceedings, repeal RCW 9.18.080 and RCW 10.52.090?

We answer the first question in the affirmative and the second and third questions in the negative.

We start from the premise that the privilege against self-incrimination afforded by the fifth amendment to the United States Constitution is applicable to state proceedings. Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964). And, that the adequacy of a state grant of immunity from prosecution must be tested against the requirements of the Fifth Amendment, which mandate that the grant of immunity be coextensive with the scope of the privilege against self-incrimination. Counselman v. Hitch[112]*112cock, 142 U.S. 547, 35 L. Ed. 1110, 12 S. Ct. 195 (1892); Murphy v. Waterfront Comm’n, 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964); Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972).

As noted in Kastigar, statutes which in certain instances provide immunity to a witness in exchange for the privilege against self-incrimination have authentic, historic and logical roots in Anglo-American law, to the extent that they have “ ‘become part of our constitutional fabric.’ ” The court further points out that not only are there a number of federal immunity statutes extant, but also one or more such statutes are on the books of every state in the Union. Kastigar v. United States, supra at 445-47.

Generally speaking, two forms of statutory grants of immunity have been upheld as constitutionally sufficient in scope to square with the scope of the Fifth Amendment privilege against self-incrimination. These forms have been characterized as furnishing “transactional immunity,” i.e., immunity from criminal prosecution for any transaction, matter or thing about which a witness is compelled to testify, and “use and derivative use immunity,” i.e., immunity from the use of the compelled testimony or any evidence derived therefrom in a subsequent criminal prosecution of the witness. Brown v. Walker, 161 U.S. 591, 40 L. Ed. 819, 16 S. Ct. 644 (1896); Ullmann v. United States, 350 U.S. 422, 100 L. Ed. 511, 76 S. Ct. 497, 53 A.L.R.2d 1008 (1956); Kastigar v. United States, supra.

RCW 9.18.080 and RCW 10.52.090, with which we are here concerned, were enacted as a part of this state’s 1909 Criminal Code, Laws of 1909, ch. 249, §§78 and 39. They provide, respectively:

Every person offending against any of the provisions of law relating to bribery or corruption shall be a competent witness against another so offending and shall not b.e excused from giving testimony tending to criminate himself.

RCW 9.18.080.

In every case where it is provided in this act that a [113]*113witness shall not be excused from giving testimony tending to criminate himself, no person shall be excused from testifying or producing any papers or documents on the ground that his testimony may tend to criminate or subject him to a penalty or forfeiture; but he shall not be prosecuted or subjected to a penalty or forfeiture for or on account of any action, matter or thing concerning which he shall so testify, except for perjury or offering false evidence committed in such testimony.

(Italics ours.) RCW 10.52.090.

It is apparent from the language of RCW 9.18.080 and RCW 10.52.090

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State v. Carroll
515 P.2d 1299 (Washington Supreme Court, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
515 P.2d 1299, 83 Wash. 2d 109, 1973 Wash. LEXIS 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carroll-wash-1973.