5.33 - 1. Transactional Immunity

• Jurisdiction: New York

1. Transactional Immunity

In New York, a witness who gives evidence in a grand jury proceeding who has not signed a written waiver of immunity automatically receives complete immunity for his responsive testimony and thus 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.”⁷⁷⁸ This variety of immunity is broader and more inclusive than use immunity, which only prevents the prosecutor from using the witness’s testimony, and the “fruits” of that testimony, as evidence against the witness in a subsequent prosecution of the witness.

Although a witness may receive immunity for a substantive crime about which he testified (e.g., where the witness denied committing the crime under investigation), such immunity does not shield the witness from prosecution for perjury if his testimony is found to be willfully false.⁷⁷⁹ The transaction about which a witness testifies must, however, have actually occurred for immunity to adhere. Thus, a police officer defendant who fabricated a transaction before the grand jury to cover up misconduct was not cloaked with transactional immunity for the misconduct as a result of his testimony.⁷⁸⁰

Similarly, when a witness is questioned in the grand jury about prior bad acts for the purpose of impeachment, responses about the prior bad acts immunize the witness from prosecution for them. Although not specifically inquired about, offenses that fall into the same general transactions as other offenses inquired about also are normally barred from prosecution. However, the Court of Appeals has held that when a defendant pleads guilty and then testifies in the grand jury about the crime to which he pleaded guilty before he is sentenced, the defendant is not immunized from prosecution, and the conviction stands.⁷⁸¹

Transactional immunity directly affects the way in which the district attorney may bring certain nontestimonial evidence before the grand jury. In New York State, a witness is immunized when he “gives evidence” before the grand jury.⁷⁸² Since the term “gives evidence” means to testify or produce physical evidence,⁷⁸³ a witness who is subpoenaed before the grand jury receives immunity, even if he does not testify but only provides a handwriting sample.⁷⁸⁴ Similarly, where a witness is subpoenaed as a custodian to produce books, papers, records or physical evidence of an enterprise that the prosecutor wishes to place in...