NCJ Number
59439
Journal
Mississippi Law Journal Volume: 49 Issue: 3 Dated: (SEPTEMBER 1978) Pages: 591-616
Date Published
1978
Length
26 pages
Annotation
MISSISSIPPI GRAND JURY WITNESS IMMUNITY LAWS ARE CONTRASTED WITH CONSITUTIONAL DICTATES AND PRACTICAL ASPECTS OF FEDERAL LAWS, IN ORDER TO EMPHASIZE THE NEED FOR CHANGES IN MISSISSIPPI LAWS.
Abstract
WITNESS IMMUNITY IS THE STATUTORY GRANT OF IMMUNITY TO COMPEL SELF-INCRIMINATING TESTIMONY IN GRAND JURY PROCEEDINGS. IMMUNITY'S HISTORY, BEGINNING IN ENGLISH COMMON LAW, IS TRACED AND USE AND DERIVATIVE USE IMMUNITY ARE DIFFERENTIATED FROM TRANSACTIONAL IMMUNITY. THE 1970 CRIME CONTROL ACT REPEALED ALL TRANSACTIONAL IMMUNITY AND ADOPTED THE USE AND DERIVATIVE USE FORM WHICH PROTECTS AGAINST DIRECT OR INDIRECT USE OF COMPELLED TESTIMONY. IN THE 1972 CASE OF KASTIGAR V. THE UNITED STATES, THE SUPREME COURT UPHELD IMMUNITY STATUTES' CONSTITUTIONALITY, BANNED WITNESS CLAIMS OF FIFTH AMENDMENT PRIVILEGE, AND STATED THE GOVERNMENT'S AFFIRMATIVE DUTY TO PROVE THAT ITS EVIDENCE IS FROM A LEGITIMATE SOURCE INDEPENDENT OF THE COMPELLED TESTIMONY. IN FEDERAL CASES, ONLY A U.S. ATTORNEY CAN REQUEST IMMUNITY, REFUSAL TO TESTIFY CAN RESULT IN CONTEMPT PROCEEDINGS, AND USE OF IMMUNIZED TESTIMONY IS PERMITTED IN NONCRIMINAL PROCEEDINGS. IN CONTRAST, MISSISSIPPI'S STATUTES ARE OVERLY BROAD, INCONSISTENT, AND OBSOLETE. NO GENERAL IMMUNITY SYSTEM EXISTS, APPLICABLE CRIMINAL ACTIVITIES ARE RARELY INVESTIGATED, AND MOST LAWS GRANT AUTOMATIC IMMUNITY TO ANY WITNESS CALLED BY THE STATE. COURT DECISIONS INVOLVING TOXIC BEVERAGE LAW VIOLATIONS ILLUSTRATE THE LIBERAL APPLICATION OF WITNESS IMMUNITY GRANTS. THE STATE COURT DECISIONS HAVE BLURRED THE DISTINCTION BETWEEN CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION AND STATUTORILY ERECTED IMMUNITY FROM PROSECUTION SUPPLANTING THE PRIVILEGE. AS A RESULT, BOTH THE STATE AND THE WITNESS ARE LEFT IN A PRECARIOUS POSITION. THE MISSISSIPPI STATE LEGISLATURE SHOULD RECOGNIZE, AS THE U.S. CONGRESS HAS, THAT THE NEED FOR IMMUNITY IS MOST APPROPRIATELY DETERMINED BY THE JUDICIARY ON A CASE BY CASE BASIS AND SHOULD PASS APPROPRIATE LEGISLATION. EXTENSIVE FOOTNOTES WITH REFERENCES ARE INCLUDED. (CFW)