Prosecutorial immunity
Encyclopedia
Immunity from prosecution occurs when a prosecutor
grants immunity, usually to a witness
in exchange for testimony
or production of other evidence
. It is immunity because the prosecutor essentially agrees to never prosecute the crime that the witness might have committed in exchange for said evidence.
The prosecution may grant immunity in one of two forms. Transactional immunity (colloquially known as "blanket" or "total" immunity) completely protects the witness
from future prosecution for crimes related to his or her testimony. "Use and derivative use" immunity prevents the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. However, should the prosecutor acquire evidence substantiating the supposed crime—independently of the witness's testimony—the witness may then be prosecuted for same.
While prosecutors at the state level may offer a witness either transactional or use and derivative use immunity, at the federal level, use and derivative use immunity is the norm.
to appear before a grand jury
are entitled to receive immunity in exchange for their testimony. The grant of immunity impairs the witness's right to invoke the Fifth Amendment protection against self-incrimination as a legal basis for refusing to testify. If a witness who has been granted immunity nevertheless refuses to offer testimony, he may be held in contempt of the court
that issued the subpoena.
In Kastigar v. United States
, 406 U.S. 441 (1972), the Supreme Court confronted the issue of which type of immunity, use or transactional, is constitutionally required in order to compel testimony. The Court ruled that the grant of "use and derivative use" immunity is sufficient.
Despite the ruling in Kastigar, the type of immunity required to compel testimony depends on the law of the applicable jurisdiction. Many states, such as New York, do more than the Federal Constitution
requires and mandate that transactional immunity be accorded to compelled witnesses.
In states where a defendant has a right to testify on his own behalf at a grand jury proceeding, waiver of immunity is invariably a condition of that right.
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
grants immunity, usually to a witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
in exchange for testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
or production of other evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
. It is immunity because the prosecutor essentially agrees to never prosecute the crime that the witness might have committed in exchange for said evidence.
The prosecution may grant immunity in one of two forms. Transactional immunity (colloquially known as "blanket" or "total" immunity) completely protects the witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
from future prosecution for crimes related to his or her testimony. "Use and derivative use" immunity prevents the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. However, should the prosecutor acquire evidence substantiating the supposed crime—independently of the witness's testimony—the witness may then be prosecuted for same.
While prosecutors at the state level may offer a witness either transactional or use and derivative use immunity, at the federal level, use and derivative use immunity is the norm.
Grand Jury testimony
Witnesses compelled by subpoenaSubpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
to appear before a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
are entitled to receive immunity in exchange for their testimony. The grant of immunity impairs the witness's right to invoke the Fifth Amendment protection against self-incrimination as a legal basis for refusing to testify. If a witness who has been granted immunity nevertheless refuses to offer testimony, he may be held in contempt of the court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
that issued the subpoena.
In Kastigar v. United States
Kastigar v. United States
Kastigar v. United States, , was a Supreme Court decision that ruled on the issue of whether the government's grant of immunity from prosecution can compel a witness to testify over his assertion of the Fifth Amendment privilege against self-incrimination....
, 406 U.S. 441 (1972), the Supreme Court confronted the issue of which type of immunity, use or transactional, is constitutionally required in order to compel testimony. The Court ruled that the grant of "use and derivative use" immunity is sufficient.
Despite the ruling in Kastigar, the type of immunity required to compel testimony depends on the law of the applicable jurisdiction. Many states, such as New York, do more than the Federal Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
requires and mandate that transactional immunity be accorded to compelled witnesses.
In states where a defendant has a right to testify on his own behalf at a grand jury proceeding, waiver of immunity is invariably a condition of that right.
See also
- Actual statute for federal and congressional use in the USA
- Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
- DEADEADEA is the commonly used acronym for the Drug Enforcement Administration, a United States law enforcement agency.DEA or Dea may also refer to:- Organizations :* DEA , UK development education charity...
- FBI
- Federal crimeFederal crimeIn the United States, a federal crime or federal offense is a crime that is made illegal by U.S. federal legislation. In the United States, criminal law and prosecution happen at both the federal and the state levels; thus a “federal crime” is one that is prosecuted under federal criminal law, and...
- Immigration and Customs Enforcement (ICE)
- InformantInformantAn informant is a person who provides privileged information about a person or organization to an agency. The term is usually used within the law enforcement world, where they are officially known as confidential or criminal informants , and can often refer pejoratively to the supply of information...
- Parliamentary immunityParliamentary immunityParliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself...
- Telephone tappingTelephone tappingTelephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
- TestimonyTestimonyIn law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
- Turn state's evidenceTurn state's evidenceTo turn state's evidence is when an accused or convicted criminal testifies as a witness for the state against his associates or accomplices. Turning state's evidence is occasionally a result of a change of heart or feelings of guilt, but more often is done in response to a generous offer from the...
- UndercoverUndercoverBeing undercover is disguising one's own identity or using an assumed identity for the purposes of gaining the trust of an individual or organization to learn secret information or to gain the trust of targeted individuals in order to gain information or evidence...
- United States Federal Witness Protection ProgramUnited States Federal Witness Protection ProgramThe United States Federal Witness Protection Program is a witness protection program administered by the United States Department of Justice and operated by the United States Marshals Service that is designed to protect threatened witnesses before, during, and after a trial.A few states, including...
- United States Marshals ServiceUnited States Marshals ServiceThe United States Marshals Service is a United States federal law enforcement agency within the United States Department of Justice . The office of U.S. Marshal is the oldest federal law enforcement office in the United States; it was created by the Judiciary Act of 1789...
- WitnessWitnessA witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
- Witness intimidationWitness intimidationWitness intimidation involves witnesses crucial to court proceedings being threatened in order to pressure or extort them not to testify. The refusal of key witnesses to testify commonly renders a case with inadequate physical evidence void in a court of law...