Witness Immunity Under Colorado Law

• Publication year: 1998
• Pages: 37

27 Colo.Law. 37 Colorado Lawyer 1998.

1998, December, Pg. 37. Witness Immunity Under Colorado Law

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37

The Colorado Lawyer
December 1998
Vol. 27, No. 12 [Page 37]

Specialty Law Columns
Criminal Law Newsletter
Witness Immunity Under Colorado Law
by Will Hood III

Not since the days of Iran/Contra, when Oliver North and John Poindexter captured headlines, has a decision to grant witness immunity helped generate so much public turmoil. When the stories of immunity for Monica Lewinsky first rained down, the descriptions of how immunity functions were often conspicuously absent, misleading, or wrong. That confusion invites consideration of how immunity law currently functions in Colorado. This article provides a summary of that body of law

Brief History of Witness Immunity

The Fifth Amendment mandates that no person "shall be compelled in any criminal case to be a witness against himself."1 An individual's right to avoid self-incrimination lives in obvious tension with the government's long-standing power to compel testimony Dating back to ancient British precedent and colonial American statutes, this power is considered "part of the American constitutional fabric," even if not of the Constitution itself.2 Witness immunity statutes seek to strike a balance between these competing interests.3

The law recognizes two general types of witness immunity "transactional immunity" and "use/derivative use immunity." Transactional immunity precludes prosecution for any transaction about which a witness testifies, while use/derivative use immunity acts only to suppress a witness's testimony and evidence derived directly or indirectly from that testimony in any prosecution of that witness.4

For many decades, the U.S. Supreme Court held that a statute must offer transactional immunity to withstand constitutional scrutiny. In Counselman v. Hitchcock, the Court held unconstitutional the Compulsory Testimony Act of 1868.5 The Counselman Court announced that "no statute which leaves the party or witness subject to prosecution after he answers the criminating [sic] question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. . . . [A] statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates."6 This early federal standard of transactional immunity served as a model for all state and federal immunity statutes enacted during the next seventy-five years.7

With the passage of a new federal immunity statute in 1970,8 Congress sought to accommodate a person's Fifth Amendment right to avoid self-incrimination while affording the government greater power to compel testimony. In Kastigar v. United States, the Supreme Court found the use/derivative use standard in the new statute "co-extensive with the scope of the privilege against self-incrimination, and therefore . . . sufficient to compel testimony over a claim of privilege."9 The Court concluded that transactional immunity affords the witness considerably broader protection than does the Fifth Amendment privilege, which simply insures that testimony cannot lead to the infliction of criminal penalties on a witness.10

Colorado law has provided for statutory witness immunity in criminal actions since 1963.11 For the next twenty years, Colorado's Witness Immunity Statute ("Statute") provided only for transactional immunity.12 Since 1983, the Statute has empowered prosecutors to seek only use/derivative use immunity.13 It no longer provides for transactional immunity.

Statutory Witness Immunity

CRS § 13-90-118

While Colorado's statutory scheme sets forth other sources of use/derivative use immunity,14 CRS § 13-90-118 is the source of law on which Colorado prosecutors most commonly rely in granting witnesses statutory immunity from subsequent criminal prosecution, stating in relevant part:

Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding . . . and the person presiding over the proceeding communicates to the witness an order as specified in subsection (2) of this section, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; except that no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury or false statement or otherwise failing to comply with the order. (2) . . .[T]he district court for the judicial district in which the proceeding is or may be held may issue, upon request of [the prosecutor] . . . , an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege. . . . (3) [The prosecutor] . . . may request [such] an order . . . when in his judgment the testimony or other...