What is the current state of the law on the power of the federal government to compel witnesses to testify before a grand jury?

California, United States of America


The following excerpt is from Tracy L., In re, 10 Cal.App.4th 1454, 13 Cal.Rptr.2d 593 (Cal. App. 1992):

"The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in [10 Cal.App.4th 1460] Anglo-American jurisprudence." (Kastigar v. United States (1972) 406 U.S. 441, 443, 92 S.Ct. 1653, 1655, 32 L.Ed.2d 212.) The United States Constitution did not abrogate this power. (Id. at p. 444, 92 S.Ct. at p. 1656.) To the contrary, "[t]he power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor." (Id. at pp. 443-444, 92 S.Ct. at pp. 1655-1656.)

However, the power to compel testimony is not absolute. It is subject to a number of exemptions, foremost of which is the Fifth Amendment privilege against compulsory self-incrimination. (Kastigar v. United States, supra, 406 U.S. at p. 444, 92 S.Ct. at p. 1656.)

The search for "a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify" has led to the enactment of immunity statutes, by which witnesses may be compelled to testify in exchange for immunity from prosecution. (Kastigar v. United States, supra, 406 U.S. at p. 446, 92 S.Ct. at p. 1657.)

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