NCJ Number
141968
Journal
American Journal of Criminal Law Volume: 20 Issue: 1 Dated: (Fall 1992) Pages: 105-133
Date Published
1992
Length
29 pages
Annotation
This analysis of the Federal immunity statute focuses on the extent to which the nonevidentiary use of immunized testimony is prohibited by the fifth amendment of the Constitution.
Abstract
The analysis focuses on the concept of use immunity in the Federal code, its establishment by the United States Supreme court in its 1972 decision in Kastigar v. United States, and its controversial application to nonevidentiary uses over the last 20 years. The analysis concludes that much of the confusion stems from the existence of two issues rather than one: (1) whether the current immunity statute or the fifth amendment prohibit nonevidentiary use of immunized testimony and (2) who has the burden of proof regarding this nonevidentiary use. Both the fifth amendment and the use immunity statute prohibit nonevidentiary use. In addition, while the initial burden to provide that nonevidentiary use occurred should and does appear to belong to the defendant, the burden of proof should shift to the prosecution once the defendant shows that the prosecution was exposed either intentionally or because of a failure to take reasonable precautions to avoid exposure. Although this may place an insurmountable burden on the prosecution, this burden is avoidable if the prosecution avoids intentionally reading testimony known to be immunized. Footnotes