WITNESS IMMUNITY IN MODERN TRIALS - OBSERVATIONS ON THE UNIFORM RULE OF CRIMINAL PROCEDURE

• NCJ Number: 61232
• Journal: Journal of Criminal Law and Criminology Volume: 67 Issue: 2 Dated: (JUNE 1976) Pages: 131-142
• Author(s): R L CARLSON
• Date Published: 1976
• Length: 12 pages
• Corporate Author: Northwestern University; Williams and Wilkins Co
• Publication Format: Article
• Publication Type: Historical Overview
• Language: English
• Country: United States of America

Annotation

THE PROVISION FOR WITNESS IMMUNITY IN THE UNIFORM RULES OF CRIMINAL PROCEDURE IS COMPARED WITH THE NATURE AND IMPLICATIONS OF WITNESS IMMUNITY AS INTERPRETED IN SIGNIFICANT COURT DECISIONS.

Abstract

RULE 732 (B) OF THE UNIFORM RULES OF CRIMINAL PROCEDURE PROVIDES THAT A WITNESS ORDERED TO ANSWER A QUESTION OVER A VALID CLAIM OF PRIVILEGE 'MAY NOT BE PROSECUTED OR SUBJECTED TO CRIMINAL PENALTY...FOR OR ON ACCOUNT OF ANY TRANSACTON OR MATTER CONCERNING WHICH, IN COMPLIANCE WITH THE ORDER, HE GAVE ANSWER OR PRODUCED INFORMATION'. THIS RULE EMBRACES THE CONCEPT OF TRANSACTIONAL IMMUNITY, WHICH PROHIBITS ANY PROSECUTION OF THE WITNESS WITH RESPECT TO THE CRIME ABOUT WHICH TESTIMONY IS PROVIDED, REGARDLESS OF ANY EVIDENCE AVAILABLE AGAINST THE WITNESS WHICH IS INDEPENDENT OF THE COMPELLED TESTIMONY. TRANSACTIONAL IMMUNITY WAS THE REGULAR PATTERN FOR IMMUNITY IN THE UNITED STATES UNTIL 1964 WHEN THE SUPREME COURT DECIDED MURPHY V. WATERFRONT COMMISSION, WHICH USED CERTAIN LANGUAGE THAT LEARNED TOWARD 'USE' IMMUNITY, WHICH ALLOWS FOR PROSECUTION OF A WITNESS GRANTED IMMUNITY, PROVIDING THE EVIDENCE IS INDEPENDENT OF THAT IN THE COMPELLED TESTIMONY. 'USE' IMMUNITY WAS BROUGHT INTO FEDERAL LEGISLATION IN THE 1970 CRIME CONTROL ACT. KASTIGAR VS. THE UNITED STATES ESTABLISHED THE CONSTITUTIONALITY OF THE STATUTE, BUT WARNED THAT HEAVY BURDENS MUST REST UPON PROSECUTORS TO SHOW THAT EVIDENCE USED IN THE PROSECUTION OF IMMUNE WITNESSES IS ENTIRELY INDEPENDENT OF COMPELLED TESTIMONY. IN UNITED STATES VS. DEDIEGO, THE APPELLATE COURT DESCRIBED THE FOLLOWING ALTERNATIVE PROCEDURES FOR DETERMINING WHETHER EVIDENCE IS TAINTED IN THE PROSECUTION OF AN IMMUNE WITNESS: (1) A PRETRIAL EVIDENTIARY HEARING, (2) A TAINT HEARING DURING THE TRIAL AS THE QUESTIONED EVIDENCE IS OFFERED, (3) A POSTTRIAL HEARING TO DETERMINE TAINT, AND (4) A COMBINATION OF THE AFOREMENTIONED ALTERNATIVES. THE PROBLEMS ASSOCIATED WITH THE PROSECUTION OF WITNESSES GRANTED IMMUNITY IN PREVIOUS TRIALS, COUPLED WITH THE LOW PERCENTAGE OF CONVICTIONS IN SUCH CASES, ARGUES FOR THE USE OF THE UNIFORM RULES OF PROCEDURE AND TRANSACTIONAL IMMUNITY AS THE MODEL FOR WITNESS IMMUNITY. (RCB)