Section 83 Immunity and the Fifth Amendment

• Library: Commercial Law 2007

Unlike its federal counterpart (18 U.S.C. § 6002), § 416.111, RSMo 2000, grants transactional immunity to a witness who has properly invoked Fifth Amendment rights. This section can be used very effectively as a means for persuading reluctant witnesses to testify against co-conspirators or employers. It offers testifying witnesses broad protection against criminal prosecution for any event or transaction about which the witness testifies. The immunity is available, however, only to a witness who has timely asserted the right against self-incrimination. If the witness inadvertently answers a prosecutor’s question before pleading the Fifth Amendment, the immunity offered by § 416.111 may be irrevocably waived. Envtl. Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 339 (4^th Cir. 1983). As a result, it is essential that a witness receive counseling concerning the Fifth Amendment, § 416.111, and their interrelationship. To ensure against waiver of the transactional immunity offered by § 416.111, it may be advisable, in the proper circumstances, for the witness to refrain from offering any substantive testimony until the witness has pleaded the Fifth Amendment and obtained both the Attorney General’s written representation that the witness is immunized and a court order compelling the witness to testify on the ground that the witness can do so free of any fear that the witness is not immunized.

A witness in a federal prosecution is not entitled to the broad transactional immunity offered under § 416.111. The Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, narrowed the scope of witness immunity considerably. If in a federal prosecution a witness has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination, 18 U.S.C. § 6003(b)(2), the federal prosecutor may request a court order requiring the witness to testify. If the witness complies with the order, immunity is granted. The immunity, however, is not from prosecution for any matter about which the witness has testified. The grant of immunity is only protection from the use against the witness of “testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) . . . .” 18 U.S.C. § 6002. If, in a subsequent criminal prosecution, the evidence against the immunized witness is obtained wholly independently of the immunized testimony, that evidence may be used as a basis for prosecuting the...