Chapter 10 Immunity

• Library: The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.)

CHAPTER 10 Immunity Use and Derivate Use Immunity Is Constitutional

The government may extinguish a person's valid Fifth Amendment privilege against self-incrimination by granting the witness immunity from having his testimony (or any information directly or indirectly derived from such testimony) used against him in a criminal prosecution. "[W]hen granted immunity, a witness once again owes the obligation imposed upon all citizens the duty to give testimony since immunity substitutes for the privilege." United States v. Mandujano, 425 U.S. 564, 576 (1976).

Until 1970, the federal immunity statutes guaranteed that witnesses compelled to testify under their terms could not be prosecuted for any transaction about which the witness testified. This type of immunity, known as transactional immunity, is still required by several states as the only form of immunity sufficient to overcome a witness's assertion of the privilege against self-incrimination in state criminal cases.

• State v. Thrift, 440 S.E.2d 341, 351, 312 S.C. 282, 300 (1994) (South Carolina's use immunity statute held unconstitutional, because state constitutional article prohibiting compelled self-incrimination requires transactional immunity).
• State v. Gonzalez, 853 P.2d 526, 533 (Alaska 1993) (Alaska's use immunity statute held unconstitutional under self-incrimination clause of Alaska constitution).
• Wright v. McAdory, 536 So. 2d 897, 903-04 (Miss. 1988) (Mississippi constitutional provision that the accused shall not be compelled to give evidence against himself required a grant of transactional immunity to compel self-incriminating testimony).
• State v. Soriano, 693 P.2d 26, 26, 298 Or. 392, 394 (1984) (under Oregon constitution, only transactional immunity is permissible).
• Attorney Gen. v. Colleton, 444 N.E.2d 915, 921, 387 Mass. 790, 800-01 (1982) (refusing to compel a witness to testify under a grant of use and derivative use immunity, finding that such immunity was inadequate to displace the defendant's right against self-incrimination under Article 12 of the Massachusetts Declaration of Rights).
• State v. Miyasaki, 614 P.2d 915, 924, 62 Haw. 269, 284 (1980) (reversing an order denying the motion to dismiss the indictment and ruling that Hawaii's use immunity statute was inadequate to terminate the defendant's right against self-incrimination under the Hawaii constitution).

Many states provide for transactional immunity through legislation, as well.

• People v. Schmidt, 455 N.W.2d 430, 434, 183 Mich. App. 817, 824-25 (1990) (interpreting Mich. Comp. Laws Ann. § 780.701).
• State v. McCullough, 744 P.2d 641, 642, 49 Wash. App. 546, 547-48 (1987) (interpreting Superior Ct. Crim. R. 6.14).
• People v. Campbell, 187 Cal. Rptr. 340, 346-47, 137 Cal. App. 3d 867, 877-78 (1982) (interpreting Cal. Penal Code § 1324).
• State ex rel. Brown v. MacQueen, 285 S.E.2d 486, 490, 169 W. Va. 56, 61-62 (1981) (interpreting W. Va. Code § 57-5-2).
• People ex rel. Cruz v. Fitzgerald, 363 N.E.2d 835, 837, 66 Ill. 2d 546, 549-51 (1977) (interpreting 725 ILCS 5/106-2, codified at the time of the case as Ill. Rev. Stat. 1975, ch. 38, f 106-2).
• State v. Paquette, 369 A.2d 1096, 1099, 117 R.I. 638, 643-44 (1977) (interpreting R.I. Gen. Laws 1956 § 12-17-15).
• State v. Hanson, 342 A.2d 300, 304 (Me. 1975) (interpreting 15 Me. Rev. Stat. Ann. § 1314-A).
• Dutton v. Dist. Court, 518 P.2d 1182, 1184-86, 95 Idaho 720, 722-24 (1974) (referring to Idaho Code § 19-1115).

In 1970, Congress enacted a statute that narrows immunity to preventing only the use of the person's testimony, or any information directly or indirectly derived from it, in any future prosecution. This statute, 18 U.S.C. § 6002, et seq., provides in pertinent part as follows:

Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but 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, giving a false statement, or otherwise failing to comply with the order.

This "use and derivative use" immunity statute was upheld against a Fifth Amendment challenge by a divided Court in Kastigar v. United States, 406 U.S. 441 (1972). Despite having stated in Counselman v. Hitchcock, 142 U.S. 547, 586 (1892), that a statutory grant of immunity in conformance with the Fifth Amendment "must afford absolute immunity against future prosecution for the offense to which the question relates," the Kastigar Court determined that transactional immunity offers greater protection than is constitutionally necessary and that use and derivative use immunity provided by 18 U.S.C. § 6002 was co-extensive with the privilege against self-incrimination. The Court reasoned:

We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being "forced to give testimony leading to the infliction of 'penalties affixed to . . . criminal acts.'" Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.

Kastigar, 406 U.S. at 453 (citations omitted).

The federal use and derivative use immunity statute contains several important limitations. First, 18 U.S.C. § 6002, et seq., protects the witness only from use or derivative use of his testimony in a future criminal case and does not protect the witness from numerous other collateral consequences resulting from compelled testimony. Because the Fifth Amendment also does not protect a witness from fear of consequences other than domestic criminal prosecution, neither the Supreme Court nor other courts have been troubled by this limitation.

• Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961) (immunity is constitutionally adequate even if it does not protect against violent reprisal against the witness or his family by the persons against whom the testimony is offered).
• Ullman v. United States, 350 U.S. 422, 430-31 (1956) (discharge from employment, expulsion from a labor union, and loss of passport eligibility are non-criminal sanctions and therefore did not render the grant of immunity [transactional in this case] inadequate under the Fifth Amendment).
• Senate Impeachment Trial Comm. on the Articles of Impeachment Against Judge G. Thomas Porteous, Jr. of the E. Dist. of La., 111th Cong. 1970-71 (Aug. 25, 2010) (Disposition of Pre-Trial Motions) (deciding that judge's prior immunized testimony may be used against him in Senate impeachment proceeding, because such trial is not a criminal case).
• United States v. Mahler, 567 F. Supp. 82, 87 (M.D. Pa. 1983) (affirming order of immunity requiring witness to answer civil discovery and ruling that such immunized testimony could be used to import civil liability on party for violations of Clean Water Act).
• Childs v. McCord, 420 F. Supp. 428, 435-36 (D. Md. 1976) (use of immunized testimony in attorney disbarment proceedings does not violate either immunity order or the Fifth Amendment privilege against self-incrimination).
• In re Pressman, 658 N.E.2d 156, 159, 421 Mass. 514, 517-18 (1995) (an attorney may be disciplined by the Board of Bar Overseers based solely on testimony that the attorney gave pursuant to a federal immunity order).

Second, 18 U.S.C. § 6002 does not protect against a prosecution for perjury committed or the making of false statements during the testimony, just as the Fifth Amendment provides no right to lie. In United States v. Apfelbaum, 445 U.S. 115, 126-27 (1980), the Supreme Court held that perjury prosecutions are permissible when a witness gives false answers under oath following a grant of immunity. There, the witness made statements before the grand jury that formed the basis for a perjury indictment. When the government sought at trial to use other immunized statements made before the same grand jury to prove that the witness had made the allegedly perjured statements knowingly, the defendant objected on the ground that the immunity pursuant to 18 U.S.C. § 6002 prevented the government from using at trial the immunized statements not alleged to have been false. Resolving a conflict between the circuits, the Court reversed, holding that it was constitutionally permissible to use all of a witness's immunized grand jury testimony at a subsequent prosecution for false swearing during the immunized testimony.

On the other hand, immunized testimony cannot be used in prosecutions for false statements made before the immunity order.

• United States v. DeSalvo, 26 F.3d 1216, 1221 (2d Cir. 1994)

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