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Witness immunity

"Immunity from prosecution" redirects here. For a prosecutor's immunity against liability for official acts, see Qualified immunity. For other forms of legal immunity see Immunity (disambiguation)#Law.

Witness immunity from prosecution occurs when a prosecutor grants immunity to a witness in exchange for testimony or production of other evidence. It is immunity because the prosecutor essentially agrees to never prosecute the crime that the witness might have committed in exchange for said evidence.

In the United States, the prosecution may grant immunity in one of two forms. Transactional immunity, colloquially known as "blanket" or "total" immunity, completely protects the witness from future prosecution for crimes related to his or her testimony. Use and derivative use immunity prevents the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. However, should the prosecutor acquire evidence substantiating the supposed crime—independently of the witness's testimony—the witness may then be prosecuted for the crime. While prosecutors at the state level may offer a witness either transactional or use and derivative use immunity, at the federal level, use and derivative use immunity is quite common.[citation needed]

Grand Jury testimony in the United States

Witnesses compelled by subpoena to appear before a grand jury are entitled to receive immunity in exchange for their testimony. The grant of immunity impairs the witness's right to invoke the Fifth Amendment protection against self-incrimination as a legal basis for refusing to testify. Per 18 U.S.C. § 6002, if a witness who has been granted immunity nevertheless refuses to offer testimony he or she may be held in contempt of the court that issued the subpoena. In addition, grand jury witnesses may be prosecuted for perjury or making false statements in their testimony.

In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court confronted the issue of which type of immunity, use or transactional, is constitutionally required in order to compel testimony. The Court ruled that the grant of use and derivative use immunity is sufficient.

Despite the ruling in Kastigar, the type of immunity required to compel testimony depends on the law of the applicable jurisdiction. Many states, such as New York, do more than the United States Constitution requires and mandate that transactional immunity be accorded to compelled witnesses.[1]

In states where a defendant has a right to testify on their own behalf at a grand jury proceeding, waiver of immunity is invariably a condition of that right.


See also