2.2 - III. New York's Immunity (Amnesty) Statute

• Jurisdiction: New York

III. NEW YORK’S IMMUNITY (AMNESTY) STATUTE

N.Y. Criminal Procedure Law § 50.10(1) (CPL) defines a person who possesses “immunity” as

[a] person who has been a witness in a legal proceeding, and who cannot . . . be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein, possesses “immunity” from any such conviction, penalty or forfeiture.

A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding that he waives his privilege against self-incrimination and any possible or prospective immunity to which he would otherwise become entitled. . .

The immunity statute confers testimonial and transactional immunity; its protection is not coterminous with the Fifth Amendment—it is an amnesty statute as to all crimes previously committed and prosecutable in the state of New York.¹⁴⁹ The transactional-automatic aspect—not federal law—is the constant subject of verbal warfare.¹⁵⁰ “Transaction” means a real transaction, not one fabricated by perjured testimony as a means to cover up another real criminal transaction.¹⁵¹ Corporations under either sovereign cannot claim immunity.¹⁵² “Penalty” or “forfeiture” means criminal penalty or forfeiture. Immunized testimony and its fruits may be used in civil actions and administrative disciplinary proceedings, though the consequences be catastrophic to one’s pocketbook or profession.¹⁵³ The same applies to the ruination of reputation. Invocation of the privilege action permits an inference against the party asserting it where he has the burden of proof on an issue. Its invocation is not a substitution for proof on which the party bears the burden of production. ¹⁵⁴

For a comparatively brief period of time—hundreds of years ago—some jurists thought that the privilege against self-incrimination (and hence the immunity which today would be required to supplant it) encompassed protection against self-infamation. This thinking may have been “judicially derived, without much foundation, from a proposition in the last volume of Coke’s Institutes to the effect that a witness alleging his own infamy or turpitude was not to be heard.”¹⁵⁵ Clearly episodic, not mainstream precedential, this misinterpretation of Coke nevertheless sometimes rears its head. It was error in 1698; it is error now.

However harsh it may be to require a reply to a question whose answer must destroy a man’s character or reputation by making him infamous publicly, there is a distinct difference between forcing him to give evidence that tends to convict him criminally and forcing him to reveal turpitude that heaps ignominy and ruin upon his head without

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