Alaska, Fifth Amendment, self-incrimination

Document Type



Until 1972, when the Supreme Court upheld a federal use andderivative use immunity statute in Kastigar v. United States, virtually every court that considered the issue of the compulsion of testimony favored transactional immunity. It appears that most courts interpreted the Supreme Court's 1892 decision in Counselman v. Hitchcock as finding only transactional immunity constitutional. Since Kastigar, the Alaska Supreme Court has had several opportunities totake sides in the debate over the grant of immunity constitutionally required to compel testimony. On each such occasion, the court has expressed a preference for transactional immunity, but has carefullyavoided resolving the issue on constitutional grounds.

Despite the expressed preference of the Alaska Supreme Court,the Alaska legislature has enacted a standard use and derivative use immunity statute at the behest of the Alaska Department of Law. This article considers the Alaska Supreme Court's voice in the consti-tutional dialogue on witness immunity and concludes that the courtwill likely hold Alaska's new use and derivative use immunity statute unconstitutional under article I, section 9, of the Alaska Constitution. A contrary result would be inconsistent with the history of the privilege against self-incrimination, the conceptualization of the privilege that existed in the minds of the framers of the Alaska Constitution, and the judicial policies that provided the analytical basis for anumber of important Alaska Supreme Court decisions.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.