HB3042 HD1

SECTION 1. The legislature finds that it is critically important to the successful prosecution of criminal cases in Hawaii that the State has the means to compel the testimony of witnesses in possession of vital information. Currently, if a witness asserts a privilege to refuse to testify or provide evidence on the grounds of self-incrimination, the State can compel that witness's testimony only by providing that witness complete and permanent "transactional immunity" from any criminal prosecution ever for or on account of any act, transaction, or matter concerning that which the witness is required to testify. This severely burdens Hawaii's prosecutors. By comparison, in prosecutions by the United States and most other states, a witness's testimony can be compelled, so long as the testimony and any evidence and information derived from that testimony is not used against that witness in any criminal case, except one for perjury, false statement, failing to comply with the order to testify, or similar offenses. Such a system is called "use immunity," and has been upheld as constitutional by the United States Supreme Court.

Hawaii's legislature enacted a use immunity statute, but the Hawaii Supreme Court struck it down as a violation of the Hawaii Constitution. Thus, amending the Hawaii Constitution is the only option if use immunity is to be allowed in Hawaii.

The purpose of this Act is to propose an amendment to article XVI of the Hawaii Constitution to establish use immunity to compel testimony before the criminal courts and grand juries of the State. The legislature finds that use immunity appropriately balances the societal need to prosecute serious criminal cases with the rights of individuals. The legislature finds that the current system, which conditions compelling testimony on a grant of transactional immunity, forces society to pay too high a price for this testimony and severely impedes the ability of prosecutors to obtain convictions in appropriate cases.

This amendment is self-executing. If adopted, judges of the circuit courts must issue use immunity orders compelling testimony or other evidence upon application of the attorney general or the attorney general's designee, but these orders must also provide that no testimony or other evidence compelled under the order, nor any information directly or indirectly derived from the testimony or other evidence, may be used against the witness in any criminal case, except a prosecution for committing perjury while giving the compelled testimony, for giving a false statement while giving the compelled testimony, or for failing to comply with the order to testify.

SECTION 2. Article XVI of the Hawaii Constitution is amended by adding a new section to be appropriately designated and to read as follows:

"USE IMMUNITY

Section . Whenever a witness refuses, on the basis of the witness's privilege against self-incrimination, to testify or provide other evidence to a grand jury or to a court in a criminal case, upon application of the attorney general or the attorney general's designee, a judge of the circuit court of the circuit in which the grand jury or court is located shall issue an order to the witness to testify or provide the evidence; provided that the order shall provide that no testimony or other evidence compelled under the order, or any information or evidence directly or indirectly derived from the testimony or evidence, may be used against the witness in any criminal case, except for a prosecution for perjury, false statement, or failing to comply with the order to testify.

A witness issued this order may not refuse to comply with the order on the basis of the witness' privilege against self-incrimination; provided that no testimony or other evidence compelled under the order, or any information or evidence directly or indirectly derived from the testimony or evidence, may be used against the witness in any criminal case, except for a prosecution for perjury, false statement, or failing to comply with the order to testify."

SECTION 3. The question to be printed on the ballot shall be as follows:

"Shall the Constitution of the State of Hawaii be amended to provide that a witness who asserts a privilege against self-incrimination may be compelled to testify or provide evidence to a grand jury or a court in a criminal case, so long as the testimony, evidence, and any information derived therefrom cannot be used against that witness in any criminal case except for a prosecution for perjury, false statement, or failing to comply with the order to testify?"

SECTION 4. New constitutional material is underscored.

HOUSE OF REPRESENTATIVES	H.B. NO.	3042
TWENTY-FOURTH LEGISLATURE, 2008		H.D. 1
STATE OF HAWAII