6.7 Immunity

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

6.7 IMMUNITY

Because the privilege against self-incrimination applies only if "in-crimination" can result, the privilege does not apply if the individual has been adequately protected against any incriminating result. When the Commonwealth, therefore, grants immunity to an individual, the privilege becomes inapplicable. Under the federal Constitution, only "testimonial immunity,"

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sometimes known as "use plus fruits" immunity, need be granted. ⁹³ That immunity guarantees that the prosecution cannot use any statement made by an individual pursuant to the grant of immunity or any evidence derived from the statement. ⁹⁴ The constitutional standard is a minimal one, and a jurisdiction may grant broader protection. There is no constitutional impediment to a state granting "transactional immunity" that prohibits trial of an individual for any offense about which the individual testifies pursuant to the immunity grant. ⁹⁵

When testimonial immunity has been granted, the immunized individual may be tried subsequent to the grant for the very offense about which he or she testified, but the Commonwealth bears a "heavy burden" to show that the evidence it intends to use is not based in whole or in any part on information obtained as a result of immunized testimony of the accused. ⁹⁶ Should the case be so based, a motion to suppress using a "fruit-of-the-poisonous-tree" argument should be made.

An accused may also face prosecution in other jurisdictions than Virginia for a given offense. As long as the Commonwealth immunizes the accused from the use of his or her testimony in Virginia, the accused must testify pursuant to the immunity grant. However, a form of "automatic" immunity protects the accused from the use of the immunized testimony by either the federal government or another state. ⁹⁷

Although the Commonwealth constitutionally could use immunity grants to compel testimony, Virginia has chosen to use immunity in only a small number of specifically defined circumstances. ⁹⁸ There is no general

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immunity statute, apart from section 19.2-270 of the Virginia Code, discussed below. Thus, immunity is not available in Virginia as a statutorily authorized prosecutorial tool. The Attorney General has opined that the commonwealth's attorney is legally unable to "enter into a contract with an accused for immunity from prosecution in consideration of his testifying in behalf of the Commonwealth . . . ." ⁹⁹

What occurs if the commonwealth's attorney does bargain for testimony? The Court of Appeals has ruled that such agreements do not contravene any constitutional or statutory provision and are therefore, like plea agreements, subject to contract law. Grants of immunity must be attended by safeguards to insure that the defendant receives the performance he or she is due. ¹⁰⁰

Virginia's one general immunity statute, section 19.2-270...