If Long had testified, then "the Fifth Amendment itself would have prohibited the use or derivative use of applicant's testimony had [he] testified (regardless of the validity of the immunity grant)." Corson v. Hames, 239 Ga. 534, 536 (4) ( 238 SE2d 75) (1977). And "the compelled evidence or any other evidence derived from the compelled evidence could not be used against appellant in proceedings in any other forum."
1. No common law or statutory authority exists for a grant of transactional immunity in Georgia. State v. Hanson, 249 Ga. 739, 742 ( 295 S.E.2d 297) (1982); see Corson v. Hames, 239 Ga. 534 ( 238 S.E.2d 75) (1977) (OCGA § 24-9-28 provides authority to grant only use and derivative use immunity for a witness compelled to testify). A district attorney, however, has the prosecutorial discretion to dismiss cases prior to indictment in exchange for information. Bryant v. State, 164 Ga. App. 555 ( 296 S.E.2d 792) (1982).
Whether or not a grant of transactional immunity by a prosecutor absent statutory authority is valid has been declared an open question. Corson v. Hames, 239 Ga. 534 ( 238 S.E.2d 75) (1977). The Court of Appeals in the present case has found that a "common law" transactional immunity exists in Georgia even though the statute provides for use immunity only. Hanson v. State, supra.
Thereupon, Palacios–Baras's cross-examination of Tejada resumed: See Corson v. Hames, 239 Ga. 534(1), 238 S.E.2d 75 (1977) (holding that “[former OCGA § 24–9–28] does not authorize a grant of transaction immunity, i.e., immunity from prosecution”); In re Long, 276 Ga.App. 306, 307, 623 S.E.2d 181 (2005) (distinguishing “transactional immunity” from “testimonial immunity,” and interpreting former OCGA § 24–9–28(a) as providing for the latter in that it “prohibits the State from using compelled testimony or evidence derived from that testimony given under an immunity grant, but would allow the State to prosecute the witness using evidence gathered elsewhere”). Q: And you have agreed to testify against these men with immunity and you know that you did this to avoid being prosecuted; is that correct?
Thereupon, Palacios-Baras's cross-examination of Tejada resumed: See Corson v. Hames, 239 Ga. 534 (1) (238 SE2d 75) (1977) (holding that [OCGA § 24-9-28] "does not authorize a grant of transaction immunity, i.e., immunity from prosecution"); In re Long, 276 Ga. App. 306, 307 (623 SE2d 181) (2005) (distinguishing "transactional immunity" from "testimonial immunity," and interpreting OCGA § 24-9-28 (a) as providing for the latter in that it "prohibits the State from using compelled testimony or evidence derived from that testimony given under an immunity grant, but would allow the State to prosecute the witness using evidence gathered elsewhere"). Q: And you have agreed to testify against these men with immunity and you know that you did this to avoid being prosecuted; is that correct?
The witness refused to testify, even after the court granted him use and derivative-use immunity, and he was held in contempt. See OCGA § 24-9-28; Corson v. Hames, 239 Ga. 534 (1) ( 238 S.E.2d 75) (1977). Because the prosecution had expected this witness to connect appellants with all eight burglaries, his refusal to testify left the prosecution without evidence satisfactorily linking appellants to most of the burglaries, about which evidence had previously been admitted.
b) The extent of the immunity was not partial, as he feared, but full, as contained in the order read to him by the court (although the transcript indicates he may not have listened) and provided by the statute. OCGA § 24-9-28; Corson v. Hames, 239 Ga. 534 ( 238 S.E.2d 75) (1977); Brooks v. State, 238 Ga. 435 ( 233 S.E.2d 208) (1977). c) The prerequisite that the State must show the compelled testimony would be "necessary to the public interest," which defendant claims was missing, was articulated in the State's motion.
Further, in Smith v. State, supra, the immunity statute (Code Ann. § 38-1715; Ga. L. 1975, pp. 727, 728) was involved in that the witnesses had been granted immunity which was not the case here. See also Corson v. Hames, 239 Ga. 534 ( 238 S.E.2d 75). As the witness was not called upon to answer before the trial court nor in anywise granted immunity under Code Ann. § 38-1715, supra, she was not in contempt whether or not her answers to the questions effectively brought into play her Fifth Amendment right, or any other rights to refuse to answer.
Therefore, the state argues the immunity grant given in September, 1980 was not authorized by this section of the Code. See Corson v. Hames, 239 Ga. 534 ( 238 S.E.2d 75). The trial court denied the motion to abate and quash.
Ark. Code Ann. § 16-43-603 (1994); People v. Reali, 895 P.2d 161 (Colo.Ct.App. 1994), interpreting Colo. Rev. Stat. Ann. § 13-90-118; State v. Williams, 536 A.2d 583 (Conn. 1988), interpreting Conn.Gen.Stat.Ann. § 54-47a (which permits use/derivative use and transactional immunity); State v. Conner, 295 A.2d 704 (Del.Super. 1972), interpreting 11 Del. Code Ann. § 3508; DeBock v. State, 512 So.2d 164 (Fla. 1987), cert. denied by DeBock v. Florida, 484 U.S. 1025, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988), interpreting Fla.Stat.Ann. § 914.04; Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75 (1977), interpreting Ga. Code Ann. § 38-1715; Matter of Girdler, 357 N.W.2d 595 (Iowa 1984), interpreting Iowa Code Ann. § 813.2 Rule 19 subd. 3; In re Birdsong, 216 Kan. 297, 532 P.2d 1301 (1975), interpreting Kan.Stat.Ann. § 22-3415 (which permits use/derivative use and transactional immunity); State v. Cinel, 619 So.2d 770 (La.App. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1398, 128 L.Ed.2d 71 (1994), interpreting La. Code Crim.Proc.Ann. art. 439.1; State v. Kingbird, 412 N.W.2d 350 (Minn.App. 1987) review denied Nov. 6, 1987, interpreting Minn.Stat.Ann. § 609.