Getting Immunity in Exchange for Testimony
Individuals accused of a crime possess a Fifth Amendment right to remain silent and not incriminate themselves. They possess the right to refuse to divulge self-damaging details, regardless of being interrogated by authorities or in a legal setting. The right to not incriminate oneself applies to answers that directly imply guilt and answers that might reveal evidence supporting guilt. Occasionally, a prosecutor might negotiate with a crime suspect if they possess knowledge about additional illegal activities. The witness may be granted immunity from prosecution if they testify against another person. Before agreeing to a deal, it is crucial to comprehend the exact terms of the offered immunity, as it can vary in type and may come with certain limitations.
Transactional immunity
Transactional immunity is available at the state level but not at the federal level. This type of immunity is the most extensive and shields the immunized witness from any potential legal action, whether it relates to the present or future, and is mentioned during their testimony. It’s commonly called “blanket” or “total” immunity. Transactional immunity only covers the witness from legal consequences pertaining to criminal actions explicitly mentioned in the immunized testimony.
Take the case of a witness who testifies against a defendant in an arson trial in return for transactional immunity. The witness is shielded from prosecution for arson because their immunity safeguards them. Suppose the witness confesses during their testimony to committing theft alongside the arson. In that case, they cannot face charges for robbery since the theft was connected to the crime discussed in the protected testimony.
In the event that the prosecution becomes aware of other criminal actions committed by the witness, like previous robberies, through a separate source after the witness has given testimony, the witness may face prosecution for those offenses since they are not related to the ongoing case.
“Use and Derivative Use” Immunity
Both state and federal prosecutors tend to employ use and derivative use immunity more frequently, and although it offers less coverage, it is more prevalent than transactional immunity. “It swiftly bars the prosecution from wielding the witness’s statements (‘use’) or any evidence sprouting from said statements (‘derivative use’) as ammunition in a trial against the witness, providing a fortification against potential harm in a criminal pursuit.” In a perfect world, the shield of use and derivative use immunity offers a strong fortress of safeguarding, equivalent to the witness remaining silent on the stand.
Nevertheless, using use and derivative use immunity does not hinder prosecutors from collecting extra and separate evidence for future use against a witness. If, while giving testimony, a witness hints at having perpetrated a crime and the prosecution acquires independent evidence of that crime (from a different source than the witness), the witness can be held accountable for that crime.
For instance, let’s consider a situation where the prosecution provides the witness with immunity to testify in the Defendant’s trial for armed robbery and protection against any repercussions resulting from their testimony. The witness testified that after the bank robbery, he used part of the stolen money to purchase 100 kilograms of cocaine from a dealer. The witness subsequently sold the 100 kilograms of cocaine to the buyer.
Is it possible for the prosecution to summon the witness for the crime of armed robbery? Yes, however, the prosecution cannot utilize the witness’s protected testimony to incriminate him. It needs proof from another source that the witness robbed the bank, like if someone saw the crime and gave a tip.
If, for example, an Addict was there when the witness sold cocaine to them and another buyer. The addict was arrested later and admitted that he witnessed the sale. In that situation, the prosecution has evidence of the crime of selling drugs from a separate source, like an addict. The prosecution can use the addict’s statement to charge the witness with the crime.
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Waiving immunity
Sometimes, a person who previously testified may choose not to have protection against legal actions after being granted immunity. This permits the authorities to accuse them by using their statements as evidence. The waiver can be clear, where the witness signs a written document. Or the waiver can be implied, which can occur when a witness freely gives a statement to law enforcement without asking for protection from prosecution. Sometimes, a person may give up their right to be protected from self-incrimination by speaking and giving testimony instead of invoking their right to remain silent under the Fifth Amendment.
If you’re under investigation for a state or federal crime and offered immunity by the prosecution, consult a lawyer who knows the rules of evidence and their implications on your rights. Implementing immunity and the right against self-incrimination can be bewildering.
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Seppi Esfandi is an Expert Attorney who has over 22 years of practice defending a variety of cases.
