Immunity for Witness to Answer Incriminating Questions

The privilege against self-incrimination, guaranteed by the Fifth Amendment, "registers an important advance in the development of our liberty--'one of the great landmarks in man's struggle to make himself civilized.' " (Ullmann v. United States (1956) 350 U.S. 422, 426 76 S. Ct. 497, 500, 100 L. Ed. 511, 518, 53 A.L.R.2d 1008.) "A grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination. . . ." ( Murphy v. Waterfront Comm'n (1964) 378 U.S. 52, 54 84 S. Ct. 1594, 1596, 12 L. Ed. 2d 678, 681.) "The object of the privilege against self-incrimination was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. the privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard." (Counselman v. Hitchcock (1892) 142 U.S. 547, 562-563 12 S. Ct. 195, 197-198, 35 L. Ed. 1110, 1114 holding that a federal immunity statute did not go far enough in its grant of immunity to require the witness to answer incriminating questions; but see Kastigar v. United States (1972) 406 U.S. 441, 461-462 92 S. Ct. 1653, 1665-1666, 32 L. Ed. 2d 212, 226-227 recognizing the constitutionality of a statutory grant of "use immunity".) Although immunity in a felony proceeding is usually granted by the court following application by the prosecution (Pen. Code, 1324), the same result is achieved where, as here, the prosecution has obtained testimony under a promise to withhold prosecution. (People v. Brunner (1973) 32 Cal. App. 3d 908, 914-915 108 Cal. Rptr. 501 district attorney's promise of immunity from prosecution in return for testimony in murder case.) Indeed, an application pursuant to Penal Code section 1324 would have been unavailing in the instant matter since the immunity statute has no application to matters other than felony proceedings or investigations before the court or the grand jury. (Ibid.) A deponent's Fifth Amendment rights do not evaporate when invoked in the sphere of civil litigation. ( People v. Superior Court (Kaufman) (1974) 12 Cal. 3d 421 115 Cal. Rptr. 812, 525 P.2d 716.) Daly v. Superior Court (1977) 19 Cal. 3d 132 137 Cal. Rptr. 14, 560 P.2d 1193 is instructive. In that case, a wrongful death lawsuit arising out of the murder of a newspaper editor, the defendants, potential suspects in the crime, refused to respond to discovery for fear of future prosecution. The Supreme Court ruled that, unless these deponents were protected against the use of compelled answers in subsequent criminal prosecutions, the constitutional privilege against self-incrimination allows them to refuse to answer any question or to produce any material that may reveal potentially incriminating information. ( Id. at pp. 142-143.) "It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." (Kastigar v. United States, supra, 406 U.S. at pp. 444-445 92 S. Ct. at p. 1656, 32 L. Ed. 2d at p. 217.) The difference between the formal grant on application ( Pen. Code, 1324 et seq.) and the less formal promise made here to withhold prosecution lies not only in the power of the court to compel testimony coupled with the right of the prosecution to seek a contempt order for refusal or failure to answer or otherwise comply with the order, but in the certainty and precision of the order. "The statute establishes a procedure under which the bargain between prosecutor and witness, each to perform certain acts in the future, can be made a matter of record so that dishonesty, equivocation, and misunderstanding may be minimized." (People v. Brunner, supra, 32 Cal. App. 3d at p. 914.) When the agreement is made without the benefit of the immunity statute, the effect is the same. "The People are estopped from arguing noncompliance." ( Id. at p. 915.) In either case, it is the exercise of the prosecutorial prerogative that results in immunity. "To use a common and colorful phrase, the defendant has been given an immunity bath. But that is so only because the prosecution has drawn the bathwater. It need not have done so. The prosecution alone controls the invocation of the immunity statute and the scope of questions required to be answered. Moreover, the prosecution did not seek to limit the scope of defendant's testimony, a course of action which also might have obviated the result we are compelled to reach." (People v. Campbell (1982) 137 Cal. App. 3d 867, 878, fn. 10 187 Cal. Rptr. 340; see In re Weber (1974) 11 Cal. 3d 703, 720 114 Cal. Rptr. 429, 523 P.2d 229.)