Immunity Grant (Self-Incrimination)

• Author: Leonard W. Levy
• Pages: 1334-1335

Page 1334

"No person," the Fifth Amendment unequivocally states, "shall be ? compelled in any criminal case to be a witness against himself.?" It does not add, "unless such person cannot be prosecuted or punished as a result of his testimony," and it does not refer to self-incrimination. Yet, if the government wants EVIDENCE concerning a crime, it can compel a witness to testify by granting immunity from prosecution. In law, such immunity means that the witness cannot incriminate himself and therefore has suffered no violation of his RIGHT AGAINST SELF-INCRIMINATION. The common sense of the matter is that to "incriminate" means to implicate criminally; in law, however, it means exposure to prosecution or penalties. The law indulges the fiction that when one receives a grant of immunity, removing him from criminal jeopardy, the right not to be a witness against oneself is not violated. If the witness cannot be prosecuted, the penalties do not exist for him, so that his testimony can be compelled without forcing him to incriminate himself or "be a witness against himself."

The first immunity statute in Anglo-American jurisprudence was probably the one enacted by Connecticut in 1698. That act specified that witnesses in criminal cases must give sworn evidence, on pain of punishment for refusal, "always provided that no person required to give testimonie as aforesaid shall be punished for what he doth confesse against himself when under oath." Similarly, an act that Parliament passed against gambling in 1710, which some colonies copied, guaranteed that gamblers who confessed their crimes and returned their winnings should be "acquitted, indemnified [immunized] and discharged from any further or other Punishment, Forfeiture, or Penalty which he or they may have incurred by the playing for or winning such Money.?" New York in 1758 obtained the king's pardon for certain ship captains in order to compel their testimony against the ships' owners. Although the pardons had eliminated the perils of the criminal law for the captains, they persisted in their claim that the law could not force them to declare anything that might incriminate them. A court fined them for contempt, on grounds that the recalcitrant captains no longer faced criminal jeopardy by giving evidence against themselves.

In modern language these colonial precedents illustrate grants of "transactional" immunity, an absolute guarantee that in return for evidence, the...