Sweeney, J.
The deter[3]*3minative issue posed in this appeal is whether the prosecutor’s use of defendant’s compelled testimony before the Senate committee, which testimony is immunized by R.C. 101.44, has tainted the indictment against defendant so as to compel its dismissal. For the reasons that follow, we answer this inquiry in the affirmative, thereby reversing the decision of the court of appeals below.
At the outset, it is abundantly clear that defendant’s Senate testimony was provided use immunity pursuant to R.C. 101.44. This statutory section provides:
“Except a person who, in writing, requests permission to appear before a committee or subcommittee of the general assembly, or of either house thereof, or who, in writing, waives the rights, privileges, and immunities granted by this section, the testimony of a witness examined before a committee or subcommittee shall not be used as evidence in a criminal proceeding against such witness. This section does not exempt a witness from the penalties for perjury.”
A careful review of the record reveals that defendant’s testimony before the Senate committee was compelled, inasmuch as she was subpoenaed to appear before that committee, and that there is no indication that she waived the rights, privileges or immunities specifically accorded her testimony by virtue of R.C. 101.44. Given the language of this statute, it is clear that absent waiver, her Senate committee testimony should not have been used in any respect during the grand jury proceedings. R.C. 101.44 specifically directs that such waiver must be made in writing. Here, the state has failed to produce any writing signed by defendant which specifically purports to waive the immunity given her Senate committee testimony. While the state has produced several waiver of rights forms that defendant signed before each of her appearances before the grand jury, none of these forms attempted to express a waiver of the statutory immunity given to her prior Senate committee testimony. A review of these forms reveals unmistakably that defendant waived only her Fifth Amendment right to remain silent before the grand jury, and such forms do not purport to act as a waiver of any prior testimony protected by R.C. 101.44. In sum, the waiver forms in issue make absolutely no mention of her statutory immunity or R.C. 101.44. Even if we were to give the state the benefit of the argument that the grand jury waiver forms could have waived the immunity granted to the prior Senate committee testimony, such argument is misplaced in the instant cause since the assistant prosecutor freely admitted that he was unaware of the immunity given defendant’s Senate committee testimony by virtue of R.C. 101.44. While the language of R.C. 101.44 clearly indicates that the immunity provided thereunder may be waived by the person who enjoys the immunity, it is also clear that the state has failed to show that defendant has waived such immunity in writing as provided by R.C. 101.44. Therefore, the courts below clearly erred in finding that defendant’s waiver of rights before the grand jury acted as a waiver of the immunity accorded to her prior testimony. While it is true that use immunity is co-extensive with Fifth Amendment protections as stated in Kastigar v. United States (1972), 406 U.S. 441, 453, this does not mean that one waives such immunity by waiving one’s Fifth Amendment right to remain silent in a subsequent grand jury proceeding. R.C. 101.44 is specific in requiring that such immunity be waived in writing. Here it was not.
Notwithstanding the foregoing, the state contends that the use of [4]*4defendant’s immunized Senate committee testimony amounted to harmless error. For the reasons that follow, we reject the state’s argument that Kastigar compels an affirmance of the decision below, and hold that the state’s use of defendant’s immunized testimony tainted the indictment so as to constitute prejudicial, reversible error.
In Kastigar, supra, the high court discussed the three types of immunities that may be granted witnesses in exchange for valuable testimony. See, also, State v. Sinito (1975), 43 Ohio St. 2d 98, 72 O.O. 2d 54, 330 N.E. 2d 896. The first type of immunity is known as “transactional immunity,” which protects a witness from prosecution when he or she provides compelled testimony which may be incriminating. The second type of immunity, found here in R.C. 101.44, is called “use immunity,” which allows the witness to be prosecuted, but prohibits any immunized testimony given by the witness from being used against him or her in a subsequent prosecution. The third type of immunity is referred to as “derivative use immunity,” and it provides immunity from the use of any information directly or indirectly derived from such testimony. Kastigar, supra, at 453.
In Kastigar, the United States Supreme Court dealt with an immunity statute similar to R.C. 101.44, viz., Section 6002, Title 18, U.S. Code, and reviewed its constitutionality with respect to the Fifth Amendment protection against self-incrimination. Therein, the court essentially held, inter alia, that the purpose of a statute granting use immunity or derivative use immunity is to leave the witness and the prosecuting authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. Id. at 457. In line with such purpose, the Kastigar court established a two-prong test that the prosecution must satisfy where a witness makes the claim that his or her immunized testimony was used: (1) the government must deny any use of the accused’s own immunized testimony against him or her in a criminal case; and (2) the government must affirmatively prove that all of the evidence to be used at trial is derived from sources wholly independent of immunized testimony. Id. at 460-462.
In our view, the state has totally failed the Kastigar test. By its own admission, the state did not meet the first prong of the Kastigar test due to its use of defendant’s immunized testimony at the grand jury hearing. This fact alone ends the inquiry of whether use of the defendant’s immunized testimony constituted error. Nevertheless, even assuming, arguendo, that the state’s use of the immunized testimony is not totally fatal under the first prong of the Kastigar test, it readily appears that the state did not satisfy the second prong of the test as well. The record indicates that the assistant prosecutor used the transcript of defendant’s immunized testimony to prepare a list of some of the questions he posed to defendant before the grand jury. In addition, assistant prosecutor Sheéran read the transcript of defendant’s immunized testimony in order to impeach her testimony before the grand jury. As the high court stated in Kastigar, supra, at 453: “* * * [Immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” (Emphasis sic.)
Under the foregoing circumstances, since the actual transcript of defendant’s immunized testimony was used in several respects to impeach her grand jury testimony, we find that the [5]*5second prong of the Kastigar
Free access — add to your briefcase to read the full text and ask questions with AI
Sweeney, J.
The deter[3]*3minative issue posed in this appeal is whether the prosecutor’s use of defendant’s compelled testimony before the Senate committee, which testimony is immunized by R.C. 101.44, has tainted the indictment against defendant so as to compel its dismissal. For the reasons that follow, we answer this inquiry in the affirmative, thereby reversing the decision of the court of appeals below.
At the outset, it is abundantly clear that defendant’s Senate testimony was provided use immunity pursuant to R.C. 101.44. This statutory section provides:
“Except a person who, in writing, requests permission to appear before a committee or subcommittee of the general assembly, or of either house thereof, or who, in writing, waives the rights, privileges, and immunities granted by this section, the testimony of a witness examined before a committee or subcommittee shall not be used as evidence in a criminal proceeding against such witness. This section does not exempt a witness from the penalties for perjury.”
A careful review of the record reveals that defendant’s testimony before the Senate committee was compelled, inasmuch as she was subpoenaed to appear before that committee, and that there is no indication that she waived the rights, privileges or immunities specifically accorded her testimony by virtue of R.C. 101.44. Given the language of this statute, it is clear that absent waiver, her Senate committee testimony should not have been used in any respect during the grand jury proceedings. R.C. 101.44 specifically directs that such waiver must be made in writing. Here, the state has failed to produce any writing signed by defendant which specifically purports to waive the immunity given her Senate committee testimony. While the state has produced several waiver of rights forms that defendant signed before each of her appearances before the grand jury, none of these forms attempted to express a waiver of the statutory immunity given to her prior Senate committee testimony. A review of these forms reveals unmistakably that defendant waived only her Fifth Amendment right to remain silent before the grand jury, and such forms do not purport to act as a waiver of any prior testimony protected by R.C. 101.44. In sum, the waiver forms in issue make absolutely no mention of her statutory immunity or R.C. 101.44. Even if we were to give the state the benefit of the argument that the grand jury waiver forms could have waived the immunity granted to the prior Senate committee testimony, such argument is misplaced in the instant cause since the assistant prosecutor freely admitted that he was unaware of the immunity given defendant’s Senate committee testimony by virtue of R.C. 101.44. While the language of R.C. 101.44 clearly indicates that the immunity provided thereunder may be waived by the person who enjoys the immunity, it is also clear that the state has failed to show that defendant has waived such immunity in writing as provided by R.C. 101.44. Therefore, the courts below clearly erred in finding that defendant’s waiver of rights before the grand jury acted as a waiver of the immunity accorded to her prior testimony. While it is true that use immunity is co-extensive with Fifth Amendment protections as stated in Kastigar v. United States (1972), 406 U.S. 441, 453, this does not mean that one waives such immunity by waiving one’s Fifth Amendment right to remain silent in a subsequent grand jury proceeding. R.C. 101.44 is specific in requiring that such immunity be waived in writing. Here it was not.
Notwithstanding the foregoing, the state contends that the use of [4]*4defendant’s immunized Senate committee testimony amounted to harmless error. For the reasons that follow, we reject the state’s argument that Kastigar compels an affirmance of the decision below, and hold that the state’s use of defendant’s immunized testimony tainted the indictment so as to constitute prejudicial, reversible error.
In Kastigar, supra, the high court discussed the three types of immunities that may be granted witnesses in exchange for valuable testimony. See, also, State v. Sinito (1975), 43 Ohio St. 2d 98, 72 O.O. 2d 54, 330 N.E. 2d 896. The first type of immunity is known as “transactional immunity,” which protects a witness from prosecution when he or she provides compelled testimony which may be incriminating. The second type of immunity, found here in R.C. 101.44, is called “use immunity,” which allows the witness to be prosecuted, but prohibits any immunized testimony given by the witness from being used against him or her in a subsequent prosecution. The third type of immunity is referred to as “derivative use immunity,” and it provides immunity from the use of any information directly or indirectly derived from such testimony. Kastigar, supra, at 453.
In Kastigar, the United States Supreme Court dealt with an immunity statute similar to R.C. 101.44, viz., Section 6002, Title 18, U.S. Code, and reviewed its constitutionality with respect to the Fifth Amendment protection against self-incrimination. Therein, the court essentially held, inter alia, that the purpose of a statute granting use immunity or derivative use immunity is to leave the witness and the prosecuting authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. Id. at 457. In line with such purpose, the Kastigar court established a two-prong test that the prosecution must satisfy where a witness makes the claim that his or her immunized testimony was used: (1) the government must deny any use of the accused’s own immunized testimony against him or her in a criminal case; and (2) the government must affirmatively prove that all of the evidence to be used at trial is derived from sources wholly independent of immunized testimony. Id. at 460-462.
In our view, the state has totally failed the Kastigar test. By its own admission, the state did not meet the first prong of the Kastigar test due to its use of defendant’s immunized testimony at the grand jury hearing. This fact alone ends the inquiry of whether use of the defendant’s immunized testimony constituted error. Nevertheless, even assuming, arguendo, that the state’s use of the immunized testimony is not totally fatal under the first prong of the Kastigar test, it readily appears that the state did not satisfy the second prong of the test as well. The record indicates that the assistant prosecutor used the transcript of defendant’s immunized testimony to prepare a list of some of the questions he posed to defendant before the grand jury. In addition, assistant prosecutor Sheéran read the transcript of defendant’s immunized testimony in order to impeach her testimony before the grand jury. As the high court stated in Kastigar, supra, at 453: “* * * [Immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” (Emphasis sic.)
Under the foregoing circumstances, since the actual transcript of defendant’s immunized testimony was used in several respects to impeach her grand jury testimony, we find that the [5]*5second prong of the Kastigar test was not satisfied in spite of the state’s proffer of news articles from which it purportedly derived its information concerning defendant’s actions. Clearly, the use of the transcript by the state at the grand jury proceedings militates strongly against a finding that it derived its information concerning defendant’s actions from wholly independent sources.
In this vein, we agree with defendant that whenever compelled testimony is used against the witness who provided it, any error cannot be held harmless. As the high court stated in New Jersey v. Portash (1979), 440 U.S. 450, 459:
“Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant’s will; the witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination. * * * Here, * * * we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing [of interests] therefore, is not simply unnecessary. It is impermissible.”
In our view, dismissal of the entire indictment is the appropriate remedy where the indicting grand jury has heard and considered the immunized testimony of the defendant. United States v. Hinton (C.A.2, 1976), 543 F. 2d 1002, 1009-1010; and United States v. Tantalo (C.A.2, 1982), 680 F. 2d 903, 909. Since improper use of immunized testimony by the prosecution under Kastigar should never be countenanced, dismissal of the indictment will greatly discourage such abuses by prosecuting authorities in future cases.
Therefore, in embracing the insightful reasoning contained in Kastigar and Portash, supra, we hold that where, in obtaining an indictment from the grand jury, the prosecution uses compelled testimony of a witness immunized pursuant to R.C. 101.44, and where the right of immunity accorded such compelled testimony has not been waived by the witness under the guidelines set forth in R.C. 101.44, any indictment issued against the witness as a result of such grand jury proceedings must be dismissed.
Accordingly, the judgment of the court of appeals is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Judgment accordingly.
Douglas, H. Brown and Res-nick, JJ., concur.
Moyer, C.J., Holmes and Jones, JJ., dissent.
Fred E. Jones, J., of the Twelfth Appellate District, sitting for Wright, J.