Immunity

• Pages: 139-152

139

CHAPTER 8

IMMUNITY

Immunity can be both a powerful investigative tool for the U.S.

Department of Justice’s Antitrust Division (Division) and a valuable

liability shield for a witness who wishes to cooperate. This Chapter

describes the various forms of immunity that the Division may use, the

degree to which a witness may still face criminal liability even after

providing immunized testimony, and the process by which immunity

may be given.

A.Forms of Immunity

1.Statutory Immunity

Under 18 U.S.C. §§ 6002–03, upon application by the government, a

court may order a witness appearing in a court proceeding or before the

grand jury to provide testimony or other information that the witness

refuses to give on the basis of the Fifth Amendment privilege against

self-incrimination. The order confers immunity, often referred to as

“formal” or “statutory” immunity, which eliminates the danger of self-

incrimination by providing that the government may not use a witness’s

testimony (or any evidence derived from it) against the witness in a

criminal case, except for perjury charges, false statement charges, or

prosecution based on the witness’s failure to otherwise comply with the

order.

An order compelling testimony will typically replicate the relevant

language in 18 U.S.C. § 6002, which provides that:

[N]o 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 this order.1

1. 18 U.S.C. § 6002 (2001).