Amending Utah's Immunity Statute

• Publication year: 1988
• Pages: 14
• Citation: Vol. 1 No. 2 Pg. 14

AMENDING UTAH'S IMMUNITY STATUTE Vol. 1 No. 2 Pg. 14 Utah Bar Journal October, 1988

David J. Schwendiman and Creighton C. Horton II, J.

The power to grant immunity in exchange for testimony or the production of evidence is a tool the prosecutor cannot do without.^[1] It is a power that predates the Constitution.^[2] It has become especially useful in complex cases. White collar crimes, investment fraud and racketeering, to name just a few, are, as Justice Powell observed, "offenses of such a character that the only persons capable of giving useful testimony are those implicated in the crime."^[3] Successful prosecutions of those kinds of crimes often hinge on testimony or evidence obtained by the careful and judicious use of immunity grants.

Absent statutory or constitutional provisions to the contrary, however, prosecutors have no inherent power to grant immunity.^[4] Where no authority exists, a promise not to prosecute may be enforced by a court as a concession to preserve the integrity of the state.^[5]A court may, as the Utah Supreme Court did in State v. Ward, 571 P.2d 1343, 1345-1347 (Utah 1977), refuse to honor such a promise except to prohibit the state from using any testimony or evidence given by a person (who has been led to believe he is immune from prosecution) against that person in a criminal prosecution involving matters touched upon in his testimony or revealed by the evidence he had produced. By codifying the conditions under which immunity can be used and by defining the scope of the immunity that can be granted, immunity statutes bring order to the process of securing every man's evidence, while at the same time protecting against the abuse of certain fundamental personal rights.

Immunity statutes exist in two basic forms. Transactional immunity statutes permit a grant of immunity which precludes prosecution for any transaction or affair about which a witness testifies. Use and derivative use immunity statutes, by contrast, permit a grant of immunity that has limitations. Rather than barring a subsequent related prosecution altogether, a grant of use and derivative use immunity acts only to suppress the witness' testimony and evidence, as well as evidence derived directly or indirectly from that testimony or evidence, in any subsequent prosecution of the witness. Evidence obtained from sources wholly independent of the immunized testimony or evidence may serve as the basis for prosecuting the witness for activities and transactions including those covered in his own statements.^[6] The burden is on the government to show that the source of its evidence in such a...