§ 43.04 "CRIMINAL LIABILITY" REQUIREMENT

• Jurisdiction: United States

§ 43.04. "CRIMINAL LIABILITY" REQUIREMENT

The Eifth Amendment protects only against compelled statements that subject the speaker to criminal prosecution. As the Supreme Court has observed: "The privilege cannot . . . be asserted by a witness to protect others from possible criminal prosecution. Nor can it be invoked simply to protect the witness' interest in privacy."²⁵

Moreover, once the possibility of criminal prosecution no longer exists, the privilege ceases. Eor example, if the statute of limitations for the offense has expired, there is no Eifth Amendment privilege. Similarly, because the Double Jeopardy Clause precludes a second trial (whether or not the first trial ended in an acquittal or conviction), there is no longer a privilege for a person who has previously been tried.²⁶ Thus, after an acquittal for murder, the defendant may be required to testify in a civil action for wrongful death based on the murder.

[A] Immunity

Immunity from prosecution is used to elicit testimony from witnesses who assert the privilege against self-incrimination.²⁷ In effect, immunity takes away the Fifth Amendment privilege because persons receiving immunity are no longer exposed to criminal liability. Once granted immunity, a witness who refuses to answer questions may be held in contempt.²⁸

[1] Scope of Immunity

There are two types of immunity: (1) transactional immunity and (2) use and derivative use immunity. The latter is more limited than the former. Transactional immunity precludes the state from prosecuting the witness for the offense about which the witness testifies. Use and derivative use immunity precludes only the use of the witness's testimony; it does not preclude prosecution if other evidence is available.

In Kastigar v. United States,²⁹ the Supreme Court held that the federal statute³⁰ that provided only use and derivative use immunity satisfied Fifth Amendment demands: "such immunity from use and derivative use is co-extensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege."³¹ Consequently, a jurisdiction is not constitutionally compelled to provide transactional immunity, although it is free to do so.

[2] Trial Use

With use and derivative use immunity, if the witness is subsequently tried, the prosecution must establish by clear and convincing proof that its evidence is not derived, either directly or indirectly, from the immunized testimony. In Kastigar, ...