Immunity is a valuable tool for prosecutors when attempting to convince a witness to testify, but there are certain rules to be aware of that govern how and when immunity can be used.
Oftentimes, a witness may have knowledge of an event or series of events that will strengthen a case against another individual or entity. Prosecutors have the ability to offer immunity to a witness in exchange for that person’s cooperation—usually on the basis that the witness will testify. The privilege is generally used when a witness is facing a minor charge, and is not only a persuasive tool for a prosecutor, but a valuable asset for witnesses.
Conditions of Immunity
When given immunity, a witness loses their ability to invoke their Fifth Amendment privilege against self-incrimination to refuse to testify if they are properly summonsed.
It is important to be aware that not all agreements offer complete protection against prosecution. Some immunity agreements leave open the possibility of legal action against the individual.
Using Immunity as a Defense
A witness who is a defendant in a case can use immunity as their defense so long as they can provide evidence that the prosecution granted immunity. Further, the witness’ cooperation in the case must specifically relate to the charges at hand. The prosecution in the case must then prove that any and all evidence that they intend to use against the defendant is separate from that of the immunized testimony and originates from a separate source.
However, the prosecution cannot simply state that the evidence is of a separate origin. They maintain the burden of proof to present an explanation as to why the evidence against the defendant is of a separate origin than the immunized testimony. If a prosecutor fails to present evidence that is unconnected to the immunized testimony, a judge may have grounds to dismiss the case altogether.
When presented with the opportunity to testify or cooperate with authorities, it is important to consult with legal counsel who is well-versed in criminal law. A knowledgeable attorney will work to ensure that his or her client fully comprehends the conditions of immunity and his or her rights in court.
For more information about witness immunity or how it affects your individual circumstances, contact the criminal defense attorneys at Alperstein & Diener.