In re A.M.-S.
| Decision Date | 22 October 2020 |
| Docket Number | No. 98094-2,98094-2 |
| Citation | 474 P.3d 560,196 Wash.2d 439 |
| Parties | In the MATTER OF the DEPENDENCY OF A.M.-S. |
| Court | Washington Supreme Court |
Kate Huber, Christopher Mark Petroni, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101-1683, for Petitioner(s).
Rachel Brehm King, Sara Evelyn King, Office of the Attorney General, 3501 Colby Ave. Ste. 200, Everett, WA, 98201-4795, Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent(s).
Kirsten Jensen Haugen, Attorney at Law, 9010 Market Pl. Pmb 155, Lake Stevens, WA, 98258-4908, for Guardian(s) Ad Litem.
Nancy Lynn Talner, ACLU-WA, Po Box 2728, Seattle, WA, 98111-2728, William H. Block, Attorney at Law, 3002 Cascadia Ave. S., Seattle, WA, 98144-6214, for Amicus Curiae on behalf of American Civil Liberties Union of Washington.
Colleen Shea-Brown, Legal Counsel For Youth and Children, Randall Ralph Hall, Attorney at Law, Po Box 28629, Seattle, WA, 98118-8629, for Amicus Curiae on behalf of Legal Counsel for Youth and Children.
Hillary Ann Behrman, D'Adre Beth Cunningham,The Washington Defender Association, 110 Prefontaine Place South, #610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Washington Defender Association.
Tara Urs, La Rond Baker, Katherine Elizabeth Hurley, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, David Ventura Montes, Attorney at Law, 710 2nd Ave. Ste. 250, Seattle, WA, 98104-1765, for Amicus Curiae on behalf of King County Department of Public Defense.
Sara Anne Zier, TeamChild, 715 Tacoma Ave. S., Tacoma, WA, 98402-2206, for Amicus Curiae on behalf of TeamChild.
Ann Margaret Brice, Law Office of Brice & Timm LLP, 1223 Broadway, Everett, WA, 98201-1715, for Counsel for Other Parties.
¶ 1 This case concerns a trial court's authority and duty to grant immunity to a parent engaging in a court-ordered evaluation in connection with a dependency proceeding. By statute, "[n]o information given" by a person during such an evaluation "may be used against such person in any subsequent criminal proceedings against such person ... concerning the alleged abuse or neglect of the child." RCW 26.44.053(2). In this case the petitioner, father of A.M.-S.,1 asked the trial court to go beyond the statute's requirements and prohibit not only the "use" of his statements during his court-ordered evaluation but also any "derivative use" of those statements.
¶ 2 The county prosecutor objected, and the trial court denied the father's motion. The Court of Appeals unanimously affirmed in a published opinion. In re Dependency of A.M.-S. , 11 Wash. App. 2d 416, 454 P.3d 117 (2019). We affirm the Court of Appeals. Under these circumstances, the trial court was not required to grant derivative use immunity over the prosecutor's objection.
¶ 3 On May 18, 2018, a dependency petition was filed alleging that A.M.-S.’s father had physically abused A.M.-S. On August 14, 2018, an agreed order of dependency was entered as to the father.2 Although the father denied the allegations against him, he stipulated to a finding of dependency "given the nature of the allegations and the possibility of criminal charges." Clerk's Papers (CP) at 381. The court ordered the father to engage in a "[p]sychological evaluation with a parenting component" and reserved ruling on other possible evaluations. Id. at 385.
¶ 5 The Court of Appeals granted the father's motion for discretionary review of this interlocutory decision. While review was pending, the father completed his psychological evaluation. A.M.-S. , 11 Wash. App. 2d at 424, 454 P.3d 117. The Court of Appeals nevertheless declined to dismiss his claim as moot "because the dependency is still ongoing and additional services may be ordered for which [the father] could seek derivative use immunity" and because "this issue is one ‘capable of repetition, yet evading review.’ " Id. at 424-25, 454 P.3d 117 (quoting In re Dependency of H. , 71 Wash. App. 524, 528, 859 P.2d 1258 (1993) ).
¶ 6 On the merits, the court affirmed. The court recognized that "the psychological evaluation or other parenting assessments that [the father] has undergone or may be ordered to undergo in this dependency proceeding threaten his right against self-incrimination." Id. at 428, 454 P.3d 117. Nevertheless, "trial courts do not have the inherent authority to confer derivative use immunity on a parent in a dependency proceeding over the objection of the prosecutor." Id. at 441, 454 P.3d 117. We granted the father's petition for review. 195 Wash.2d 1014, 461 P.3d 1204 (2020).
¶ 7 Is a trial court required to grant derivative use immunity to a parent engaging in court-ordered evaluations in a dependency case over the prosecutor's objection?
¶ 8 To provide context for the issue presented, it is first necessary to briefly review the law regarding the constitutional privilege against self-incrimination and the government's authority to nevertheless compel unwilling individuals to provide potentially incriminating information. The Fifth Amendment to the United States Constitution provides, "No person ... shall be compelled in any criminal case to be a witness against himself." Likewise, article I, section 9 of the Washington Constitution provides, "No person shall be compelled in any criminal case to give evidence against himself." The federal and state provisions give the same level of protection. State v. Mendes , 180 Wash.2d 188, 194, 322 P.3d 791 (2014).
¶ 9 "The right against self-incrimination is liberally construed." State v. Easter , 130 Wash.2d 228, 236, 922 P.2d 1285 (1996) (citing Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951) ). Therefore, the right is not limited to testimony given at a trial. Instead, 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 , 406 U.S. 441, 444-45, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972) (footnote omitted).
¶ 10 Nevertheless, "[t]he power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence." Id . Compelled testimony may be obtained pursuant to "immunity statutes," which provide that under certain circumstances, an unwilling person may be compelled to give information and testify as a witness, even though their statements could be incriminating. "The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime." Id. at 446, 92 S. Ct. 1653. However, in order to lawfully compel a person's testimony without violating the Fifth Amendment, an immunity statute must grant the person immunity that is at least "coextensive with the scope of the privilege." Id. at 449, 92 S. Ct. 1653.
¶ 11 There are three types of immunity that may be granted: "transactional" immunity, "use" immunity, and "derivative use" immunity. Id. Transactional immunity is the broadest because it "accords full immunity from prosecution for the offense to which the compelled testimony relates." Id. at 453, 92 S. Ct. 1653. Use immunity is much narrower, protecting "only against the use of the specific testimony compelled from" the person. Id. at 450, 92 S. Ct. 1653. Finally, derivative use immunity prevents the government from using "any information directly or indirectly derived from such [compelled] testimony or other information." Id. at 453, 92 S. Ct. 1653. Thus, when a person is granted derivative use immunity, the government has an "affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460, 92 S. Ct. 1653.
¶ 12 In order to compel testimony without violating the Fifth Amendment, an immunity statute must provide, at a minimum, both use and derivative use immunity. Together, use and derivative use 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." Id. at 453, 92 S. Ct. 1653. However, the combination of use and derivative use immunity still "permits prosecution if the State can show the source of its evidence is wholly independent from and untainted by the fruit of the witness’ testimony." State v. Bryant , 146 Wash.2d...
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