Transactional Immunity for Witnesses

In federal prosecutions, U.S. attorneys can seek to compel the testimony of a witness by providing testimonial or use immunity. In state prosecutions, local prosecutors may grant use immunity or transactional immunity based on state law.

A lower-level member of a suspected organized crime ring faces arrest on charges of armed robbery and extortion. Prosecutors have a solid case against this defendant. But they're really after the crime boss. They're suspected of operating a multimillion-dollar racket throughout the city for the past 15 years. The defendant was the personal driver for the head of the organization. He overheard a lot of high-level discussions. His information could take down the whole enterprise.

While the defendant isn't talking, prosecutors decide it's best to cut a deal. They want all the details. So, they grant the defendant transactional immunity from all charges in exchange for his complete testimony. If the deal goes through, the driver's charges of armed robbery and extortion will go away.

This article overviews immunity for witnesses and discusses the two types of immunity. It also describes the interaction of the right against self-incrimination with the grant of immunity.

The Privilege Against Self-Incrimination

Evidence in a criminal case comes in many forms. There is direct evidence and circumstantial evidence. There is physical evidence and testimonial evidence. The privilege against self-incrimination relates to testimonial or communicative evidence. The government (federal or state) has an important interest in compelling a witness to testify. Witness testimony can help a government body (like Congress or a state legislature) understand and address problems that affect society. It can also help a judge or jury determine whether someone committed a crime.

We often see a person in a TV crime show claim they will "take the Fifth." The Fifth Amendment to the U.S. Constitution provides citizens with the right against government-compelled self-incrimination. It allows a witness to refuse to answer questions that would lead to criminal liability. We've seen dramatic displays of “taking the Fifth" in sensationalized criminal prosecutions, like the murder case against O.J. Simpson. One of the police investigators in that case refused to answer questions on the witness stand when asked about planting evidence at the crime scene by stating “I wish to assert my Fifth Amendment privilege."

Asserting Fifth Amendment protection is one part of evidence and testimony. Another part is granting a witness immunity to compel their testimony. Both state and federal law permit a prosecutor to pursue a grant of immunity in exchange for witness testimony.

The grant of immunity can happen in a few settings. Under federal law, a witness may receive use immunity for testimony before:

  • A court or grand jury of the United States
  • An agency of the United States
  • Either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House

Who Grants Immunity?

A federal or state prosecutor decides who will receive immunity. A grant of immunity can occur for a variety of crimes — from minor theft to the crime of murder. Procedures may vary between the federal and state legal systems. In a case involving the federal government, the U.S. attorney will use the process set out in 18 U.S.C. Sections 6002-6003 to get an order to compel testimony. This requires the approval of the U.S. Attorney General or Deputy Attorney General. The request must state that the testimony or other information may be necessary to the public interest and that the witness refused or is likely to refuse to testify or provide other information based on their right against self-incrimination.

In some states, the prosecutor may pursue immunity by obtaining a formal court order or writing a letter. Some states permit only transactional immunity. Others may permit use immunity. When used correctly, a grant of immunity can help investigations. It may reveal information that a witness wouldn't otherwise be willing to give for fear of prosecution.

Why would a prosecutor grant a witness immunity? Think about the concept of “getting the big fish." If you want to get to the mastermind of a crime, you need the help of key witnesses. These are people who can testify to the boss' statements and actions and where the money went.

What Is Transactional Immunity?

A prosecutor can offer two types of immunity to a witness. Think of transactional immunity as a grant of total immunity. In contrast, the witness's own testimony or any evidence derived from testimony against the witness can't be used by the prosecution in any future prosecution in a grant of use immunity.

Transactional immunity is the most complete immunity that can be offered to a witness. It protects a person from prosecution of the crime involved.

Let's say Sally sold drugs in a certain neighborhood. While the crime of selling narcotics is serious, law enforcement might decide they would rather arrest Charlie Kingpin, the drug supplier, not Sally the small-time dealer. If Sally receives transactional immunity from the district attorney for her participation in drug sales so she can provide testimony against Charlie Kingpin, Sally can't face charges for the drug sales. Her immunity protects her even if there is other evidence that she sold the drugs.

Transactional immunity is the broadest type of immunity. But it doesn't prevent prosecution for criminal activities unrelated to the transaction at issue. So, if it comes out later that Sally committed a robbery during her time dealing drugs for Charlie Kingpin, she likely won't receive protection for that crime.

Also, you should be aware that even states that only allow transactional immunity may have exceptions in their statutes. For example, Ohio Revised Code section 2945.44 permits a court to grant transactional immunity at the state's request. The state must claim that the witness testimony or information would have been subject to the privilege against self-incrimination. If the witness testifies pursuant to the order, they can't face criminal charges or penalties "for or on account of any transaction" for which they provided testimony or information. But they may face prosecution for a violation of perjury, tampering with evidence, falsification, or contempt committed in answering, failing to answer, or failing to produce information in compliance with the order.

What Is Use Immunity?

The federal government and the states authorize the provision of use immunity to bring out statements or other information otherwise subject to the privilege against self-incrimination. Use immunity, also known as derivative use immunity, involves providing a witness with limited immunity from prosecution. Basically, the state can't use the immunized testimony of the witness or any evidence derived from it in any future prosecution of the witness.

The federal statute allowing use immunity faced a court challenge in Kastigar v. United States (1972). In that case, the U.S. Supreme Court upheld the government's grant of use immunity to appellants who had refused to testify before a federal grand jury. Appellants claimed that only the absolute immunity found in transactional immunity would be adequate to supplant the witness' privilege and compel their testimony.

The Court found that the use immunity in the statute was sufficient. It also clarified that where the government brings criminal charges against a witness whose testimony was compelled under the statute, it has a heavy burden. It must show it had a "legitimate source wholly independent of the compelled testimony" to proceed with the prosecution. In most circumstances, the state will have difficulty providing independent evidence or proving that its basis for a future prosecution does not stem from the compelled testimony the witness provided.

Have More Questions? Get Help From a Lawyer

If you're being investigated for a state or federal crime and have been offered immunity by the prosecution, you'll want sound legal advice. You should consider speaking with a legal professional who understands this area of the law. The interplay between the concept of immunity and the privilege against self-incrimination can get confusing. A skilled criminal defense attorney in your area can answer your questions.

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