NCJ Number
46367
Journal
Journal of Police Science and Administration Volume: 5 Issue: 2 Dated: (JUNE 1977) Pages: 165-178
Date Published
1977
Length
14 pages
Annotation
CASE LAW AND ISSUES PERTAINING TO DEFENSE WITNESS IMMUNITY ARE REVIEWED, AND RESULTS OF AN ATTITUDINAL SURVEY OF STATE OFFICIALS DESIGNATED AS ORGANIZED CRIME CONTROL CONTACTS ARE PRESENTED.
Abstract
TWO 1972 SUPREME COURT DECISIONS, KASTIGAR VERSUS UNITED STATES AND ZICARELLI VERSUS NEW JERSEY STATE COMMISSION OF INVESTIGATION, APPROVED IMMUNITY STATUTES ALLOWING THE GOVERNMENT TO COMPEL SELF-INCRIMINATING TESTIMONY SO LONG AS THE TESTIMONY OR EVIDENCE DERIVED FROM IT WAS NOT USED IN ANY SUBSEQUENT PROSECUTION OF THE WITNESS. SUCH 'USE IMMUNITY' HAS PROVEN A USEFUL LAW ENFORCEMENT TOOL IN THE PROSECUTION OF ORGANIZED CRIME. DEFENDANTS HAVE ASSERTED THAT A DENIAL OF USE IMMUNITY TO DEFENSE WITNESSES CONSTITUTES A VIOLATION OF DUE PROCESS. REQUESTS FOR DEFENSE WITNESS IMMUNITY ARE SELDOM MADE AND SELDOMLY GRANTED. THE SUCCESS OF SUCH A REQUEST DEPENDS ON THE PROSECUTOR'S OR COURT'S READING OF THE FIFTH AND SIXTH AMENDMENTS AND THE APPLICABLE IMMUNITY STATUTES, WHETHER THE REQUEST FOR IMMUNITY FOR A DEFENSE WITNESS SHOULD PREVAIL ON DUE PROCESS GROUNDS DEPENDS ON A BALANCING OF THE INTERESTS OF THE DEFENDANT, THE WITNESS, THE PROSECUTOR, AND THE PUBLIC. THE DEFENDANT'S INTERESTS REST ON TWO PREMISES: IMMUNITY MAKES AVAILABLE OTHERWISE UNAVAILABLE TESTIMONY AND THE PROSECUTION'S REFUSAL TO GRANT IMMUNITY MAKES THE UNAVAILABILITY OF THE TESTIMONY CHARGEABLE TO THE STATE. THE PUBLIC AND THE PROSECUTION ARE CONCERNED WITH THE FACT THAT THE IMMUNITY CREATES A LEGAL BARRIER TO THE FUTURE PROSECUTION OF OTHER OFFENSES, OR THAT THE IMMUNITY MIGHT BE EXTENDED BEYOND ITS INTENDED SCOPE BY THE EXAMINING ATTORNEY. CONCERNS OF THE WITNESS INCLUDE THE DISPLACEMENT OF THE FIFTH AMENDMENT AND EXPOSURE OF THE WITNESS OF HIS FAMILY TO POSSIBLE RETALIATION. IN GENERAL, THE COURT HAS SEEN ITS ROLE AS LIMITED TO THAT OF MODIFYING THE EFFECTS OF A PROSECUTORIAL REFUSAL TO GRANT IMMUNITY TO A DEFENSE WITNESS, THUS MAKING DEFENSE WITNESS IMMUNITY LARGELY A MATTER OF PROSECUTORIAL DISCRETION. OF 55 STATE ATTORNEYS GENERAL'S ORGANIZED CRIME CONTACTS, RESPONSES TO AN ATTITUDINAL QUESTIONNAIRE WERE RECEIVED FROM 14. QUESTIONS DEALT WITH THE INTERESTS OF THE PUBLIC AND PROSECUTION AND THE DEFENDANT AND WITNESS AND WITH EQUAL PROTECTION ARGUMENTS FOR DEFENSE WITNESS IMMUNITY. IN GENERAL, RESPONDENTS FAVORED USING IMMUNITY FOR DEFENSE WITNESSES IN APPROPRIATE CASES AND WERE WILLING TO CONSIDER REQUESTS FOR SUCH IMMUNITY DESPITE THE FACT THAT FEW NOW HAVE USE IMMUNITY POWERS. IN ADDITION, RESPONDENTS AGREED THAT THE LEGISLATIVE AVAILABILITY OF USE IMMUNITY WOULD BE A MAJOR AND SOMETIMES CONCLUSIVE FACTOR IN GRANTING A REQUEST FOR DEFENSE WITNESS IMMUNITY. (JAP)