Use Immunity: a Major Change in Utah Criminal Law

• Jurisdiction: Utah,United States
• Citation: Vol. 10 No. 9 Pg. 8
• Pages: 8
• Publication year: 1997

Use Immunity: A Major Change in Utah Criminal Law Vol. 10 No. 9 Pg. 8 Utah Bar Journal November, 1997

Creighton C. Horton II, J.

The 1997 Legislature enacted H.B. 78, Witness Immunity Amendments, sponsored by Representative David Gladwell. It is a major change in the law, bringing to Utah the concept of "use immunity," which authorizes a prosecutor to compel a witness to provide testimony or evidence so long as the information cannot be used against the witness. No longer will prosecutors have to give witnesses "transactional immunity," barring any possibility of prosecuting them for anything they disclose, in order to compel them to testify or give evidence against others.

In this article, I will briefly touch on the history of use immunity, discuss provisions of the new law, and then cover some of the strategic considerations, particularly when a witness may later be prosecuted after testifying under a grant of use immunity.

HISTORY

In 1972, in Kastigar v. United States, 406 U.S. 441 (1972), the United States , Supreme Court established the principle that use immunity is sufficient to protect the Fifth Amendment privilege against self-incrimination, so long as the statement of the defendant and evidence produced by him cannot be used against him, either directly or indirectly, in a criminal case. Previously, in Counselman v. Hitchcock, 142 U.S. 547 (1892), the Court had held that "straight" use immunity (not including derivative use) was not constitutionally sufficient, and that only transactional immunity would suffice to protect Fifth Amendment interests.

Use immunity recognizes the principle that the self-incrimination clause protects a person from being compelled to be a witness against himself, not against others. Following the Kastigar decision, a number of states enacted use immunity statutes similar to the federal statute (18 U.S.C. § 6002).

WHAT THE BILL DOES

Here are some of the main features of the new law:

1.Up until now, the transactional immunity provisions have been within Chapter 22 of Title 77, which deal with the Subpoena Powers Act. The new immunity provisions are in a new chapter, Chapter 22b, to make clear that they apply across-the-board and not just in the investigative subpoena context.^[1]

2. The new use immunity provisions allow a county attorney, district attorney, attorney general, or a deputy or assistant authorized by the elected official, to grant use immunity to a witness. This is different from the previous law, which required that the elected official personally grant immunity.^[2]

3. The new law provides a mechanism for granting immunity and for notifying the witness of the grant, which includes advising the witness that he or she may not refuse to testify or produce evidence or information on the basis of the privilege against self-incrimination, but that such evidence cannot be used directly or indirectly against the witness. The notice must be in writing (unless it occurs during a preliminary hearing, grand jury proceeding, or trial, and is on the record). The grant is then effective and requires no judicial involvement. In the event the witness refuses to cooperate after receiving the grant, the prosecutor may notice up a hearing before the district court and request the court to compel the witness to comply. If the witness is ordered by the court to comply and refuses, he or she may be held in contempt of court.

4. The protections given a witness who is compelled under a grant of use immunity are found in subparagraph (2) of § 77'-22b-1, which provides that testimony, evidence or information compelled under use immunity may not be...