State v. Soriano

• Decision Date: 07 September 1984
• Docket Number: Nos. 83-006CR,s. 83-006CR
• Citation: 684 P.2d 1220,68 Or.App. 642
• Parties: STATE of Oregon, Respondent, v. Sigifredo Ultreras SORIANO, Appellant. STATE of Oregon, Respondent, v. James Albert GOGUEN, Appellant. ; CA A27206; CA A27207. . *
• Court: Oregon Court of Appeals

Page 1220

684 P.2d 1220

68 Or.App. 642

STATE of Oregon, Respondent, v. Sigifredo Ultreras SORIANO, Appellant.

STATE of Oregon, Respondent, v. James Albert GOGUEN, Appellant.

Nos. 83-006CR; CA A27206; CA A27207.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted July 22, 1983.

Resubmitted In Banc May 2, 1984.

Decided June 13, 1984.

Reconsideration Denied Sept. 7, 1984.

Enver Bozgoz, Klamath Falls, argued the cause and filed the brief for appellants

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Mildred J. Carmack, Portland, filed a brief amicus curiae for American Civil Liberties Union Foundation of Oregon, Inc.

Stephen J. Williams, Salem, filed a brief amicus curiae for Oregon Criminal Defense Lawyers Association.

GILLETTE, Judge.

In these consolidated contempt cases, defendants refused to testify before a grand jury investigating a possible burglary at the General Store in Klamath Falls, claiming their right under Article I, section 12, of the Oregon Constitution ¹ not to be compelled to testify against themselves. After extensive proceedings, the trial court granted them use and derivative use immunity under ORS 136.617-136.619 ²

                and ordered them to testify. 3  They persisted in their refusals, claiming that the statutory immunity was insufficient to replace their constitutional right and that only transactional immunity would be sufficient to protect them.  The court held [68 Or.App. 645] that the statutory immunity was adequate and found them to be in contempt.  They appeal from the resulting sentences.  We reverse
                

THE OREGON CONSTITUTION

In recent years, the Oregon Supreme Court has made it clear that the Oregon Constitution has a content independent of that of the federal constitution and that Oregon courts should consider state constitutional claims before examining issues of federal law. See, e.g., In re Lasswell, 296 Or. 121, 673 P.2d 855 (1983); State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983); State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983); State v. Davis, 295 Or. 227, 666 P.2d 802 (1983); Hewitt v. SAIF, 294 Or. 33, 653 P.2d 970 (1982); State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982). The state nonetheless argues that, with respect to the issue now before us, we should generally construe the Oregon Constitution to the same effect as the United States Supreme Court construes similar provisions of the federal constitution. It points out that many of the guarantees in both constitutions come from the same sources and urges that the United States Supreme Court's construction of them should control the Oregon construction. The state's arguments miss the point of the Oregon Supreme Court's holdings.

While many guarantees of the state and federal constitutions have their roots in the same sources, they are embodied in different constitutions, with different ultimate interpreters, and may reflect variations in their values and purposes. They generally appeared first in state constitutions and were later added to the federal. No court is the primary interpreter of those guarantees. Under the Fourteenth Amendment, the United States Supreme Court's construction of the federal version of those guarantees is both authoritative for the federal system and a constitutional minimum which states must obey. Its decisions do not, however, decide the meaning of the Oregon Constitution. In that respect, a United States Supreme Court majority is no more binding in Oregon than is a United States Supreme Court minority, a decision of the Supreme Courts of Hawaii, California, or Georgia, or a well-reasoned law review article. Judicial opinions from other jurisdictions are helpful in interpreting the Oregon Constitution to the extent that their reasoning is persuasive and their background is applicable to Oregon. Cf. State v. Kennedy, supra (establishing a double jeopardy rule under the Oregon Constitution different from that proposed by the majority or the minority of the United States Supreme Court). This independent construction of Oregon law holds even when the Oregon law is directly derived from the federal law, which the Oregon Bill of Rights is not. See State v. Pottle, 296 Or. 274, 677 P.2d 1 (1984).

The specific right involved here, not to be a witness against one's self, was a recognized privilege at common law before American independence and first took constitutional form in state constitutions. State courts were also the first to rule on the issues we consider in this case; when the United States Supreme Court first acted it simply adopted one line of state decisions and rejected another. We see no particular reason that we should give greater weight to the views of the United States Supreme Court, which came late to this subject, rather than to the states whose constitutional provisions predated the federal and whose court decisions came earlier.

IMMUNITY LEGISLATION AND THE STATE COURTS

The common law rule, nemo tenetur seipsem accusare, (no person is bound to accuse himself) first received constitutional status in the Declaration of Rights in the Virginia Constitution of 1776, and then in several other state constitutions. In 1791, it was added to the United States Constitution as part of the Fifth Amendment and, by the beginning of the twentieth century, was part of every state constitution except those of New Jersey and Iowa, where it exists as part of the due process of law, State v. Height, 117 Iowa 650, 91 N.W. 935 (1902), or as a rule of the common law. State v. Zdanowicz, 69 N.J.L. 619, 55 A. 743 (1903). The constitutional language varies, but courts generally treat the basic principle as the same in all the states. ⁴ Before Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Fifth Amendment statement of the right applied only to the federal system. Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908). As a result, state legislatures and state courts were the first to attempt to balance the constitutional right against the need to gain accomplice or other self-incriminating testimony in enforcing criminal laws. We therefore first examine the state decisions which set the framework for evaluating immunity legislation.

The common law privilege against being required to testify or produce evidence against oneself had several exceptions; early immunity legislation drew on them. All arose in situations where it was clear that any criminal liability which might attach to the witness' answers had expired. Thus, if the witness had been pardoned, or had been tried and acquitted or convicted (and, under some statements of the exception, had served the sentence), or if the limitations period had run, the witness had to testify. These exceptions applied to the constitutional right, which was based on the common law privilege. See State v. Quarles, supra n. 4; State v. Jack, 69 Kan. 387, 397, 76 P. 911 (1904), aff'd sub nom Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234 (1905); People v. Mather, 4 Wend. 229, 230 (N.Y.1830); LaFontaine v. Southern Underwriters Ass'n, 83 N.C. 132 (1880). ⁵ Legislatures seeking to overcome the problems of discovering crimes, such as gambling or bribery, in which all those involved might be subject to criminal liability and thus not available to testify, sought to provide additional exceptions to the right by immunizing witnesses who testified. ⁶ The crucial problem courts faced in evaluating these exceptions was the extent to which it was necessary to protect against derivative use of the immunized testimony.

The first state immunity acts provided only use imunity. The first courts to consider them held that they provided adequate substitutes for the right, but those cases did not involve any derivative use problems. In State v. Quarles, supra n. 4, the Arkansas Supreme Court held that the right was merely not to be required to produce evidence to establish one's guilt. It did not directly consider use of the testimony to search out other evidence against the witness (derivative use), but it may have suggested that such a use was too remote to consider. The California Supreme Court in Ex Parte Rowe, supra n. 4, took a similar position, as did the Georgia Supreme Court in Higdon v. Heard, 14 Ga. 255 (1853). Neither court considered the derivative use problem. ⁷

When courts did face the derivative use problem, they originally held that it was not necessary to protect a witness against such use. In Wilkins v. Malone, supra n. 4, the Indiana Supreme Court rejected the plaintiff's claim that he was entitled to transactional immunity before he could be required to testify concerning alleged usury in a note he sued to collect. ⁸ Although his testimony might provide facts previously unknown to anyone but himself, the court said, the prosecution would still have to prove those facts by other means. The New York Court of Appeals stated this position clearly in People ex rel. Hackley v. Kelly, supra n. 4, 24 N.Y. at 83:

"If a man cannot give evidence upon the trial of another person without disclosing circumstances which will make his own guilt apparent or at least capable of proof, though his account of the transactions should never be used as evidence, it is the misfortune of his condition and not any want of humanity in the law."

The possibility that a witness' immunized testimony would point the prosecution to the evidence necessary for a conviction and, thus, would be as a practical matter incriminating, led several courts to reject limits on immunity. Massachusetts took the lead in 1871 in Emery's Case, supra n. 4. Basing its ruling partly on the provision in the Massachusetts constitution prohibiting requiring a person to furnish evidence as well as to give incriminating testimony, the court held that use of compelled evidence to search out other evidence against a...