State v. Ely

Annotate this Case

State v. Ely (96-587); 167 Vt. 323; 708 A.2d 1332

[Filed 19-Dec-1997]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 96-587

State of Vermont Supreme Court
Original Jurisdiction
v.

Shawn Ely December Term, 1996

Walter M. Morris, Jr., J.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
Attorney General, Montpelier, for plaintiff-appellee

Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

DOOLEY, J. This case raises the single issue of whether the
provision of use and derivative use immunity to a reluctant witness
pursuant to 12 V.S.A. § 1664(a) is consistent with the self-incrimination
privilege established by Chapter I, Article 10 of the Vermont Constitution.
We hold that it is consistent as long as derivative use is defined
sufficiently broadly to provide equivalent protection to that provided by
the privilege and certain procedural protections are afforded. We affirm.

The State charged defendant, Shawn Ely, with the second-degree murder
of Eddie Billings, a two-year-old child, and subpoenaed Wanda Allard
(hereinafter witness), the mother of Eddie Billings, to testify at a
pretrial hearing. The witness appeared, but refused to testify, asserting
her privilege against self-incrimination; she was offered use and
derivative use immunity pursuant to 12 V.S.A. § 1664(a), but she continued
to refuse to testify, asserting that only transactional immunity would be
sufficient to provide her equivalent protection to the self-incrimination
privilege. The trial court disagreed and held her in contempt.

Chapter I, Article 10 of the Vermont Constitution provides that in
all prosecutions for criminal offenses, a person . . . [cannot] be
compelled to give evidence against himself. Consistent with the
self-incrimination privilege established in the Fifth Amendment to the
United States Constitution, this privilege attaches and applies to a
non-defendant witness who is compelled to testify in a civil or criminal
proceeding. See Maness v. Meyers, 419 U.S. 449, 464-65 (1975); 12 V.S.A. §
1662. There is no dispute that the witness in this case had an Article 10
right to refuse to testify to the extent that testimony would involve
giving evidence against herself.

Like all states and the federal government, Vermont has adopted an
immunity law to require incriminating testimony, but to provide sufficient
protection to the witness to replace the self-incrimination privilege.
Although we have never squarely decided the question, the witness in this
case does not argue that an immunity law can never replace the
constitutional privilege. Our general immunity law was first enacted in
1931, but applied only to misdemeanors. See generally State v. Howard, 108
Vt. 137, 142-43, 183 A. 497, 499 (1935). Up until 1973, the effect of
testimony given under the immunity law was as follows:

A person shall not be prosecuted or subjected to any
penalty or forfeiture for or on account of any transaction, matter,
or thing as to which, in obedience to a subpoena issued at the
request of the state and under oath, he may so testify or produce
evidence, and no testimony or evidence so given or produced shall
be received against him . . . .

1931, No. 38, § 1, 1931. In the parlance used to describe immunity
statutes, the Vermont law provided for both transactional and use immunity.
Once the witness gave evidence under the immunity law, the witness could
not be prosecuted for any transaction to which the witness testified or
produced evidence -- transactional immunity. Nor could the testimony or
evidence be received against the witness -- use immunity.

In 1972, the United States Supreme Court decided Kastigar v. United
States, 406 U.S. 441 (1972), holding that immunity against use and
derivative use of the coerced incriminatory

testimony was sufficient to replace the Fifth Amendment privilege. Id. at
453. Like many states, Vermont amended its preexisting transactional
immunity law to provide for use and derivative use immunity. Our immunity
law, which applies to both misdemeanors and felonies, now provides in
pertinent part:

(a) Whenever a witness refuses, on the basis of his privi-
lege against self-incrimination, to testify or provide other in-
formation in a proceeding before or ancillary to a court or grand
jury of the state of Vermont, and the presiding judge
communicates to the witness an order issued under subsection (b)
of this section, the witness may not refuse to comply with the
order on the basis of his privilege against self-incrimination; but
no testimony or other information compelled under the order, or
any information directly or indirectly derived from such testimony
or other information, may be used for any purpose, including
impeachment and cross-examination, against the witness in any
criminal case, except a prosecution for perjury, giving a false
statement or otherwise failing to comply with the order. The state
shall have the burden of proving beyond a reasonable doubt that
any proffered evidence was derived from sources totally indepen-
dent of the compelled testimony. If the witness is subsequently
charged with an offense, other than perjury, the court may order
the return of all copies of his compelled testimony. . . .

(b) In the case of any individual who has been or may be
called to testify or provide other information at any proceeding
before or ancillary to a court or grand jury of the state of
Vermont, the presiding judge may issue in accordance with
subsection (c) of this section, upon the request of the attorney
general or a state s attorney, an order requiring such individual to
give testimony or provide other information which he refuses to
give or provide on the basis of the privilege against self-
incrimination, such order to become effective as provided in
subsection (a) of this section.

(c) The attorney general or a state s attorney may request
an order under subsection (a) of this section when in his judgment:

(1) the testimony or other information from such
individual may be necessary to the public interest;
and
(2) such individual has refused or is likely to refuse
to testify or provide other information on the basis
of the privilege against self-incrimination.

12 V.S.A. § 1664. Unlike the earlier statute, the current law no longer
provides transactional immunity to the witness. Also, unlike the earlier
statute, it goes beyond use immunity to cover

information directly or indirectly derived from such testimony or other
information, normally called fruits or derivative use information. It
also imposes a new burden on the State in any prosecution of the witness to
prove beyond a reasonable doubt that any evidence was derived from sources
totally independent of the compelled testimony.

As discussed below, it is clear that the Vermont immunity statute is
broad enough to replace the self-incrimination privilege of the Fifth
Amendment as construed in Kastigar. The witness argues, however, that it
is not broad enough to replace the privilege created by Chapter I, Article
10 of the Vermont Constitution. In her view, only an immunity statute that
provides transactional immunity for any actions disclosed in the coerced
evidence would be sufficient to pass Vermont constitutional muster.

We must acknowledge at the outset that the state constitutional issue
is unlike those that have emerged since the United States Supreme Court has
applied the full extent of constitutional criminal procedure protections to
the states. Normally, a criminal defendant is arguing that we should find
a constitutional right that the United States Supreme Court has never found
under the United States Constitution. In this case, the witness is arguing
that we should apply federal constitutional law as it existed for nearly a
century up until the Kastigar decision and not follow the change in the law
created by Kastigar.

In Counselman v. Hitchcock, 142 U.S. 547 (1892), the Supreme Court
considered whether a grand jury could require incriminating testimony
pursuant to a statutory grant of use immunity covering such testimony. The
Court noted that the statutory immunity

would not prevent the use of his testimony to search out other
testimony to be used in evidence against him or his property, in a
criminal proceeding in such court. It could not prevent the
obtaining and the use of witnesses and evidence which should be
attributable directly to the testimony he might give under
compulsion, and on which he might be convicted, when otherwise,
and if he had refused to answer, he could not possibly have been
convicted.

Id. at 564. For this reason, it found that the protection of the statute
was not coextensive with

the constitutional privilege and detracted from the privilege afforded by
the Constitution. Id. at 565. After an exhaustive analysis of prior state
and federal cases, the Court held:

We are clearly of opinion that no statute which leaves the
party or witness subject to prosecution after he answers the
criminating question put to him, can have the effect of supplanting
the privilege conferred by the Constitution of the United States. .
. . In view of the constitutional provision, a statutory enactment,
to be valid, must afford absolute immunity against future
prosecution for the offence to which the question relates.

Id. at 585-86.

For eighty years, Counselman stood as the definitive statement on the
ability to obtain incriminating testimony consistent with the Fifth
Amendment through a grant of immunity, and federal statutes provided for
transactional immunity to allow for such evidence. In the 1960's, however,
the Supreme Court signaled that it might modify Counselman to the extent
that it held that only transactional immunity was sufficient, see Murphy v.
Waterfront Comm n, 378 U.S. 52, 79 (1964), and Congress passed a use and
derivative use immunity statute. The Supreme Court upheld this statute in
Kastigar, acknowledging that Counselman required transactional immunity,
but holding that the language was only nonbinding dicta.

The Court explained:

While a grant of immunity must afford protection commensurate
with that afforded by the privilege, it need not be broader.
Transactional immunity, which accords full immunity from
prosecution for the offense to which the compelled testimony
relates, affords the witness considerably broader protection than
does the Fifth Amendment privilege. The privilege has never been
construed to mean that one who invokes it cannot subsequently be
prosecuted. Its sole concern is to afford protection against being
forced to give testimony leading to the infliction of penalties
affixed to . . . criminal acts. Immunity from the use of
compelled testimony, as well as evidence derived directly and
indirectly therefrom, affords this protection. It 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.

406 U.S. at 453. It found the Counselman decision fully consistent with
this reasoning because the concern in Counselman was the derivative use of
evidence gained under a grant of immunity.

The Court responded to the argument that use and derivative use
immunity was insufficient to provide the full protection afforded by
privilege-protected silence. It specifically addressed the argument that
[i]t will be difficult and perhaps impossible . . . to identify, by
testimony or cross-examination, the subtle ways in which the compelled
testimony may disadvantage a witness. Id. at 459. It noted that the
prohibition of the federal statute was sweeping and barred use of immunized
testimony as an investigatory lead or to focus an investigation on a
witness. Id. at 460. It also held that the protection does not depend on
the good faith of the prosecutor because, once the witness discloses that
he or she testified under a grant of immunity, the prosecution has the
burden to show that the evidence being used against the immunized witness
came from legitimate sources, wholly independent of the compelled
testimony. Id. at 460. In the Court s view, these protections insured
that the compelled testimony can in no way lead to the infliction of
criminal penalties. Id. at 461.

The practical difficulties in enforcing use and derivative use
immunity prompted a dissent from Justice Marshall. Justice Marshall argued
that enforcement of use and derivative use immunity inevitably depends on
the integrity and good faith of the prosecutor because the knowledge
necessary to show whether the immunized evidence has been used is wholly
controlled by the prosecutor, and the prosecutor can always meet the burden
of proof by mere assertion that will be undisputed. He added:

Second, even [prosecutorial] . . . good faith is not a sufficient
safeguard. For the paths of information through the investigative
bureaucracy may well be long and winding, and even a prosecutor
acting in the best of faith cannot be certain that somewhere in the
depths of his investigative apparatus, often including hundreds of
employees, there was not some prohibited use of the compelled
testimony.

Id. at 469.

In short, the issue before us is whether we should follow Kastigar, or
some variation of the decision that will allow use and derivative use
immunity, or follow Counselman and require transactional immunity.
Although the issues have varied, the analysis of the meaning of

provisions of our Constitution has become familiar. We look to our own
decisions, the wording of the text, historical analysis, construction of
similar provisions in other state constitutions and sociological materials.
Benning v. State, 161 Vt. 472, 476, 641 A.2d 757, 759 (1994).

Both parties have noted the textual distinction between the Fifth
Amendment to the United States Constitution and Article 10 of the Vermont
Constitution. The Fifth Amendment provides that no person shall be
compelled . . . to be a witness against himself; Article 10 states that a
person cannot be compelled to give evidence against himself. Witness
argues that the term evidence is broader than the term witness, and
this breadth supports her argument. We have rejected this claim on a number
of occasions, and we see no reason to reexamine the point here.(FN1) See
State v. Picknell, 142 Vt. 215, 227, 454 A.2d 711, 716 (1982) (majority of
states have constitutional self-incrimination provisions different from
that in Fifth Amendment, but courts have interpreted them to be consistent
with Fifth Amendment); State v. Brean, 136 Vt. 147, 151, 385 A.2d 1085,
1088 (1978) (state and federal constitutional provisions, although using
slightly variant phraseology, have a common origin and a similar purpose );
State v. Pierce, 120 Vt. 373, 376-78, 141 A.2d 419, 421-22 (1958)
(variations in constitutional language do not alter essential meaning;
despite language of Article 10, it extends only to testimonial utterances);
State v. Baker, 115 Vt. 94, 113, 53 A.2d 53, 64 (1947) (Moulton, C.J.,
dissenting) (language of Fifth Amendment is the same in meaning as the
corresponding phraseology of the Constitution of this State ); In re Dewar,
102 Vt. 340, 346, 148 A. 489, 491 (1930) (Fifth Amendment is uniform in
meaning with the provision of our Constitution herein directly involved );
see also Schmerber v. California, 384 U.S. 757, 761-62 n.6 (1966) (word
witness

in Fifth Amendment and word evidence in many state constitutions should
have as far as possible the same interpretation ).(FN2)

Nor can we find much help in our prior decisions. Many of our sister
states had decided immunity cases prior to the Supreme Court s Counselman
decision, and that Court relied on these precedents. See, e.g., Emery s
Case, 107 Mass. 172, 185 (1871) (in order to question witness on matter
that will incriminate witness, transactional immunity must be provided);
State v. Nowell, 58 N.H. 314, 315 (1878) (follows Emery s Case). We have
no equivalent precedent.

Although both parties cite language from our cases, none of it gives
us much help in deciding this case. In Dewar, we held that
self-incrimination provisions are of first importance and should be
applied in a broad and liberal spirit to the end that the individual shall
enjoy that complete immunity therein contemplated. 102 Vt. at 345, 148 A. at 490. In State v. Baker, a three-to-two decision, the majority of this
Court upheld a statute that allowed the judge and prosecution to comment on
the failure of the defendant to testify, and quoted with approval the
following description of Article 10:

`The history of the privilege, and the weight of authority, show
that the constitutional provision was directed against torture, force,
and the inquisitorial practices of past centuries. It has no concern
with tactical refinements.'

115 Vt. at 105, 53 A.2d at 59 (quoting Opinion of the Justices, 15 N.E.2d 662, 666 (1938) (Lummus, J., dissenting)).

We disagree with the State s position that our decisions have endorsed
use and derivative use immunity in this context. Our references to the
concept involve the Fifth Amendment, see

State v. Couture, 146 Vt. 268, 275, 502 A.2d 846, 851 (1985) (statement
that constitution only guarantees use and derivative use immunity
specifically refers to the Fifth Amendment privilege), or a voluntary,
judicially crafted remedy, to allow an accused in special circumstances to
respond to adverse evidence without enabling the prosecutor to use the
response in a separate criminal proceeding. See State v. Loveland, ___ Vt.
___, ___, 684 A.2d 272, 276 (1996); State v. Cate, ___ Vt. ___, ___, 683 A.2d 1010, 1018-19 (1996); State v. Drake, 150 Vt. 235, 237, 552 A.2d 780,
781 (1988); In re Hill, 149 Vt. 431, 439-40, 545 A.2d 1019, 1025 (1988);
State v. Begins, 147 Vt. 295, 299, 514 A.2d 719, 722-23 (1986). These
applications of use and derivative use immunity provide little assistance
with the question before us.

Nor is this an issue on which history is much of a guide. The
language of Article 10 is taken from the Virginia Declaration of Rights,
and was adopted by many states. See E. Moglen, Taking the Fifth:
Reconsidering the Origins of the Constitutional Privilege Against Self-
Incrimination, 92 Mich. L. Rev. 1086, 1118 (1994). At the time of its
adoption, and well into the nineteenth century, a criminal defendant was
not allowed to testify under oath at his or her trial. See Baker, 115 Vt.
at 100, 102, 53 A.2d at 57 (criminal defendants were not allowed to testify
on own behalf until 1866; at time of adoption of constitution, drafters
could not have conceived that defendants would ever be given right to
testify). Criminal procedure assumed the testimonial availability of the
defendant at the crucial pretrial stage of the prosecution and freely made
use of the defendant s admissions at trial. Moglen, supra, 92 Mich. L.
Rev. at 1129. Thus, the issue before us was unknown at the time of the
adoption of Article 10.

We find the most assistance in the decisions of other states. The
courts of six states have rejected Kastigar and held that their
constitutional self-incrimination provision requires transactional immunity
in cases of compelled, incriminatory testimony. See State v. Gonzalez, 853 P.2d 526, 533 (Alaska 1993); State v. Miyasaki, 614 P.2d 915, 924 (Haw.
1980); Attorney General v. Colleton, 444 N.E.2d 915, 920 (Mass. 1982);
Wright v. McAdory, 536 So. 2d 897, 904 (Miss. 1988); State v. Soriano, 684 P.2d 1220, 1234 (Or. Ct. App. 1984), aff'd 693 P.2d 26 (Or. 1984); State v. Thrift, 440 S.E.2d 341, 351 (S.C. 1994). Seven
courts have held to the contrary, but in only two of these states, New
Jersey and Pennsylvania, have the courts engaged in a detailed analysis of
the issue. See Patchell v. State, 711 P.2d 647, 649 (Ariz. Ct. App. 1985);
In re Caito, 459 N.E.2d 1179, 1183-84 (Ind. 1984), cert denied, 469 U.S. 805 (1984); In re Criminal Investigation No. 1-162, 516 A.2d 976, 981 n.3
(Md. 1986); State v. Strong, 542 A.2d 866, 872 (N.J. 1988); People v.
Johnson, 507 N.Y.S.2d 791, 793 (N.Y. Sup. Ct. 1986); Commonwealth v.
Swinehart, 664 A.2d 957, 969 (Pa. 1995); Ex Parte Shorthouse, 640 S.W.2d 924, 928 (Tex. Crim. App. 1982).

Some of the decisions requiring transactional immunity rely on
pre-Kastigar state constitution holdings. See, e.g., Colleton, 444 N.E.2d
at 919 (relying on Emery s Case); Thrift, 440 S.E.2d at 350 (relying on Ex
parte Johnson, 196 S.E. 164, 169 (S.C. 1938)). Most, however, are based on
the policy grounds raised by Justice Marshall in his dissent in Kastigar.
Thus, in Gonzalez, the Alaska Supreme Court acknowledged that in theory
strict application of use and derivative use immunity would remove the
hazard of incrimination, but concluded that in practice the courts cannot
protect adequately against use and derivative use. 853 P.2d at 530. The
court gave two reasons for its conclusion: (1) the evidence of use is all
in the hands of the prosecution, and the defendant s proof difficulties are
insurmountable; and (2) the state cannot meaningfully guard against
nonevidentiary use -- that is, use in focusing the investigation, deciding
to prosecute, planning trial strategy and deciding whether to plea bargain.
Id. at 530-32. In Miyasaki, the Hawaii Supreme Court voiced similar
concerns and added the concern that a defendant would forego the right to
testify rather than face a cross-examination informed by the compelled
prior testimony. 614 P.2d at 924. The Oregon Court of Appeals summarized
about the disclosure of incriminating testimony to the prosecution: `It is
unrealistic to give a dog a bone and to expect him not to chew on it.'
Soriano, 684 P.2d at 1234 (quoting Johnson v. Woodrich, 566 P.2d 859, 861
(Or. 1977)).

The decisions that have upheld use and derivative use immunity
statutes under the

applicable state constitution self-incrimination provision have, like
Kastigar, stressed that transactional immunity grants amnesty, which is
well beyond what the privilege protects. See Strong, 542 A.2d at 869;
Swinehart, 664 A.2d at 968. The New Jersey Court held that its
constitution is more protective than the Fifth Amendment. Nevertheless, it
held that use and derivative use immunity provides equivalent protection to
a self-incrimination privilege which mandates the strictest scrutiny of and
the strongest protections against prosecutorial misuse of testimony.
Strong, 542 A.2d at 872. To ensure that immunity provides equivalent
protection, the court required that the prosecution prove by clear and
convincing evidence that the evidence against the defendant was developed
and obtained by means entirely independent of and unrelated to the
compelled testimony, id., that the compelled testimony not be used to
develop trial strategy, id. at 877, and that a strict but for test be
used in comparing the evidence against the defendant to the compelled
testimony. Id. at 878.

The Pennsylvania court also adopted the clear-and-convincing-evidence
standard in determining whether the evidence against the defendant came
from sources wholly independent of the compelled testimony. See Swinehart,
664 A.2d at 969. The court acknowledged the difficulties in determining
whether compelled testimony was used directly or indirectly in building the
prosecution case, but held that on balance the right of the court to compel
every person s testimony outweighed this practical concern. Id. at 968.

After considering the decisions from other jurisdictions, including
from the United States Supreme Court, we are left with a single overriding
question: whether use and derivative use immunity can be administered such
that it provides protection equivalent to the self-incrimination privilege.
We agree with the Supreme Courts of New Jersey and Pennsylvania that use
and derivative use immunity best matches the protection afforded by the
privilege and that transactional immunity goes further than the privilege,
thereby allowing persons to escape criminal responsibility for their
actions in cases where use of the privilege would not. We agree with the
courts in other jurisdictions, however, that if transactional immunity is
necessary to

accord the full protection of the self-incrimination privilege, we must
require it despite its undesirable side effect.

We address this question in the context of a specific statute that has
four requirements to protect the rights of the witness whose evidence is
compelled. First it provides that no testimony, or other information
compelled, or any information directly or indirectly derived from such
testimony or other information, may be used for any purpose against the
witness in a criminal case. 12 V.S.A. § 1664(a) (emphasis added). Second,
it requires the State to prove that any evidence against the witness was
derived from sources totally independent of the compelled testimony. Id.
Third, it requires that the State s proof meet an elevated standard of
proof beyond a reasonable doubt. Id. Fourth, it authorizes, but does
not require, that the trial judge provide immunity and direct the witness
to provide incriminating evidence. Id. § 1664(b); Cf. In re D.L., 164 Vt.
223, 234, 669 A.2d 1172, 1179-80 (1995) (use of may in inquest statute
means that judge has discretion on whether to honor prosecutor s request to
call an inquest).

We also address the question with the benefit of the record of
twenty-five years of experience in applying the Kastigar standard,
primarily in the federal courts. From that record, we conclude that use
and derivative use immunity can be administered under our statute to
provide protection equivalent to that afforded by the Article 10
self-incrimination privilege if we adhere to certain standards and
procedural requirements.

First, as the statute requires, the burden to show nonuse of the
compelled evidence lies with the State under an elevated standard of proof.
This burden cannot be met by bare assertions of nonuse. See United States
v. Harris, 973 F.2d 333, 337 (4th Cir. 1992). Instead, the State must show
how it developed the evidence against the witness to demonstrate that its
development was totally independent of the compelled evidence. Normally,
it must do so at a hearing called for this purpose. See United States v.
North, 910 F.2d 843, 854 (D.C. Cir. 1990), reh'g granted in part and denied
in part, 920 F.2d 940, 942-43 (D.C. Cir. 1990), cert

denied, 500 U.S. 941 (1991).

Second, with respect to immunity given under § 1664(a), the court
should ordinarily require that the State provide a written statement
(called canning ) of all evidence it has against the witness prior to the
compelled disclosure. See North, 910 F.2d at 872-73. This statement
should be sealed and filed with the court order compelling the evidence.
If the witness is subsequently charged with a crime about which testimony
is compelled under the statute, the statement is available to the court and
the defendant to aid in determining whether compelled evidence was used in
connection with the criminal case.

Third, the statutory prohibition on use for any purpose extends both
to evidentiary and nonevidentiary use. The decisions following Kastigar
have split on whether use and derivative use immunity under that decision
prohibits nonevidentiary use, which is defined in the leading case of
United States v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973) to include
assistance in focusing the investigation, deciding to initiate prosecution,
refusing to plea-bargain, interpreting evidence, planning
cross-examination, and otherwise generally planning trial strategy. Under
the general rationale that it goes too far to prohibit use of immunized
testimony to tangentially influence the prosecutor s thought process in
preparing the indictment and preparing for trial, the Second Circuit Court
of Appeals has held that Kastigar does not prohibit nonevidentiary use of
immunized testimony. See United States v. Mariani, 851 F.2d 595, 600 (2d
Cir. 1988), cert denied, 490 U.S. 1011 (1989). Some courts have followed
Mariani, see United States v. Crowson, 828 F.2d 1427, 1431-32 (9th Cir.
1987), cert denied, 488 U.S. 831 (1988); United States v. Byrd, 765 F.2d 1524, 1528-31 (11th Cir. 1985), and others have followed McDaniel in
prohibiting nonevidentiary use. See United States v. Semkiw, 712 F.2d 891,
895 (3d Cir. 1983); State v. Gault, 551 N.W.2d 719, 725 (Minn. Ct. App.
1996); Strong, 542 A.2d at 877.

We need not resolve the conflict over the meaning of Kastigar or the
federal immunity statute. Our statute is written broadly to prohibit use
for any purpose, and the plain meaning of the words extends to
nonevidentiary use. We are persuaded that the burden on the

prosecution to show how it developed its case, with the high standard of
proof is sufficient to uncover instances of nonevidentiary use.

Fourth, the prohibition on use or derivative use extends not only to
prosecutors and law enforcement personnel but to fact witnesses whose
discovery or motivation to provide evidence is related to the immunized
testimony or whose evidence is shaped by that testimony. See North, 910 F.2d at 860; Strong, 542 A.2d at 876-77. The prosecution of an immunized
witness must meet a strict but for test any evidence that would not
have been available in the form provided at trial, but for the immunized
testimony of the defendant, cannot be used because it is not totally
independent of the compelled testimony. 12 V.S.A. § 1664(a).

Finally, we emphasize that the trial judge has discretion to refuse to
compel testimony under a grant of use and derivative use immunity.
Recognizing that in some cases, despite all precautions, use and derivative
use immunity is inadequate to replace the privilege, the statute authorizes
the attorney general or state s attorney to offer, and the court to order,
transactional immunity to a witness. 12 V.S.A. § 1664(a). Using this
authority, the court may in a particular case conclude that precautions are
inadequate to protect a witness s privilege and only transactional immunity
will suffice. In such a case, the court may refuse to compel testimony
unless transactional immunity is afforded by the prosecution.

Because of the requirements we have imposed on the administration of
use and derivative use immunity, we address the question of access to
immunized evidence. Our statute, and this decision, prohibit use of the
evidence against the immunized witness; they do not prohibit access to such
evidence. See United States v. Serrano, 870 F.2d 1, 17 (1st Cir. 1989)
(purpose of Fifth Amendment is not "frustrated by the government's mere
exposure to immunized testimony"). Indeed, prosecutorial access is
necessary to prosecute the original target or another target separate from
the immunized witness.

Nevertheless, it will be difficult, if not impossible, for a
prosecutor of the immunized witness to show nonuse if there is widespread
access to the immunized evidence by the

prosecutor, law enforcement personnel and other witnesses. To prevent
unnecessary access to immunized evidence, the court may consider
prohibiting public access to it by closing the proceeding and sealing the
evidence.(FN3) We recommend that prosecutors and law enforcement agencies
adopt procedures that will limit access to immunized evidence, and that
persons who investigate or prosecute immunized witnesses be separate from
those who had access to the immunized testimony.

We believe that in Vermont, under the above requirements, use and
derivative use immunity is consistent with Chapter II, Article 10 of the
Vermont Constitution. We acknowledge that these requirements are strict
and may, in some cases, require transactional immunity especially if
prosecutors and law enforcement personnel who seek evidence under immunity
orders do not adopt procedures that eliminate or minimize the misuse of
immunized evidence.

Affirmed and remanded for further proceedings consistent with this
decision.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. We do not suggest that if we agreed with witness, the breadth
would mean that transactional immunity would be required. The New Jersey
Supreme Court held that its constitutional provision grants broader
self-incrimination protection than the Fifth Amendment, but nevertheless
ruled that use and derivative use immunity is sufficient to supplant the
privilege. See State v. Strong, 542 A.2d 866, 872 (N.J. 1988).

FN2. Despite the number and uniformity of our decisions on this
point, this appears to be an issue that does not go away. Noting the
different language of the Fifth Amendment self-incrimination provision and
Article 10, this Court stated in State v. Jewett, 146 Vt. 221, 226-27, 500 A.2d 233, 237 (1985) that "it is possible that [Article 10] . . . could be
construed differently from [the] somewhat similar provision[] in the
Federal Constitution." Three years earlier in Picknell, 142 Vt. 227, 454 A.2d at 716, we started our analysis by noting that this "is a matter of
first impression for this Court."

FN3. We recognize that the public has a qualified First Amendment
right of access to criminal proceedings and that right of access may be
overridden in certain circumstances. See Press Enterprise Co. v. Superior
Court, 478 U.S. 1, 9-10 (1986). We do not attempt in this decision to
resolve when the court may close proceedings and seal evidence to limit
access for those who might investigate or prosecute the immunized witness.

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