Grants of Immunity and the Fifth Amendment

Originally published by Jason B. Freeman.

Immunity Generally

Immunity is a tool often used by prosecutors to compel an individual to testify or to provide a statement that may be incriminating to assist the government in prosecuting another, perhaps more culpable person. Immunity provides an individual with as much, and sometimes more, protection as the Fifth amendment by protecting an immunized individual from prosecution based on his or her compelled statement.

While immunity protects an individual from criminal prosecution, immunized statements and testimony may nonetheless be available for use against a witness in noncriminal matters, such as civil proceedings, disciplinary proceedings and tax proceedings, and may prompt nonjudicial consequences, such as the loss of a job or license. Additionally, a person who has been granted immunity may subsequently be prosecuted for perjury as a result of inconsistent and conflicting statements.

Types of Immunity

There are two types of immunity that can be granted by the government in order to compel a witness to testify against himself: transactional immunity and derivative-use immunity.

Transactional Immunity

Transactional immunity, or blanket immunity, provides individuals with more protection than the Fifth amendment, and complete immunity for any transactions revealed in the testimony, even if the government finds independent evidence that the witness committed the crime. Because of its powerful protection, transactional immunity is usually granted as a part of a plea agreement or as a result of successful prosecution. Additionally, 18 U.S.C. § 6002 provides only for derivative use immunity, transactional immunity is only granted by state prosecutors.

Derivative-Use Immunity

Derivative use immunity has the same scope as the Fifth amendment, preventing prosecutors from using the immunized response or information gained directly or indirectly from it against the individual. Because derivative use immunity provides for more limited protection than transactional immunity, an individual may still be prosecuted for the crimes he or she testified about under immunity. In any subsequent prosecution of a person granted derivative use immunity, the government carries the substantial burden to prove by a preponderance of the evidence that all evidence proposed is derived from legitimate sources, wholly independent from the immunized testimony. To prosecute for an offense that was the subject to testimony given under derivative-use immunity, the prosecutor must obtain written approval from the Attorney General, and a court will typically hold a Kastigar hearing to ensure that the government has met its burden of proof, and that the case has not been affected by the compelled testimony.

Obtaining Immunity

To provide immunity to overcome an individual’s Fifth amendment privilege against self-incrimination, the government has two options: statutory immunity, or letter immunity.

Statutory Immunity

Statutory immunity, or formal immunity, is a court order providing the witness with immunity and compelling them to testify. To obtain formal immunity, the Attorney General or designated Assistant Attorney General must grant the US Attorney permission to request the order. To be granted permission the US Attorney must show that the testimony may be necessary to the public interest, and that the individual has or is likely to invoke their privilege against self-incrimination. Once permission is granted, the US Attorney then petitions the district court where the individual will testify. The court must grant the petition so long as it meets the requirements of 18 U.S.C § 6001-6003. Once granted, the order of immunity will apply only to the specific proceedings for which the court granted the order.

Both state and federal prosecutors may obtain statutory immunity, and both must respect the other’s grants of immunity. For example, if an individual testifies under federal statutory immunity, the state prosecutor cannot use that testimony to prosecute the individual in any way. Although prosecutors must accept each other’s grants of immunity, state grants of immunity with greater protection than the Fifth amendment, such as transactional immunity, are not binding on federal prosecutors and will be treated as though they were derivative-use immunity.

Letter Immunity

Letter immunity, or informal immunity, is voluntary testimony pursuant to an agreement. Because the individual is voluntarily entering into this agreement and not being compelled to testify, letter immunity cannot overcome the privilege against self-incrimination. Although informal immunity protects individuals in generally the same way as formal immunity, there are a few key differences. Letter immunity is more common than statutory immunity because there is no court order required, allowing a prosecutor to approve it without any authorization from a high-ranking DOJ member. Additionally, letter immunity is not pursuant to any immunity statute, so its terms are generally negotiable and can cover a broad array of areas including interviews, prep sessions and testimony depending on what is necessary for the situation. One important difference between statutory immunity and letter immunity is that letter immunity only applies to the district or area that is a party to the agreement. This means that an individual receiving letter immunity in district A who is also culpable in district B can still be subject to prosecution in district B based on the content of his immunized statements. Additionally, unless the agreement states otherwise, the prosecutor that is a party to the agreement is not prohibited from disclosing these immunized statements to officials in other jurisdictions.

Refusal to Comply with Grant of Immunity

Refusing to testify or give statements after receiving a grant of immunity can result in the witness being held in contempt of court, subjecting the witness to confinement and fines. Contempt of court of court is the result of an act of disobedience or disrespect towards the court, or interference with its operations. It is a tool that allows the judiciary to maintain order in the court room, and ensure justice is carried out. When dealing with a refusal to testify under immunity, the district court can impose either civil contempt, or criminal contempt. The court should use the least amount of power it deems necessary to compel testimony, and therefore should evaluate whether civil contempt will be effective before employing criminal contempt. However, it is not necessary for courts to impose civil contempt before criminal if the judge determines a civil remedy would be inadequate. Additionally, courts can hold an individual in civil and criminal contempt for the same refusal to testify.

Civil Contempt

Civil contempt is a tool used by judges to coerce testimony from an individual. To hold an individual in civil contempt for refusing to testify, the government must prove the order compelling them to testify was valid and lawful, and clear, definite and unambiguous. An individual held in civil contempt has no right to a jury trial, and can be held in jail until they testify, the grand jury term expires, the court proceeding concludes, or for no more than 18 months. Because civil contempt sanctions are intended to have a coercive effect, the sanctions must be lifted upon the individual’s compliance with the order.

Criminal Contempt

Criminal contempt is a tool used by judges to punish individuals for refusing to testify under immunity. To hold an individual in criminal contempt for refusing to testify, the government must prove beyond a reasonable doubt that the court issued a lawful order compelling testimony, the defendant knew about the order, and the defendant willfully disobeyed the order. The court may hold an individual in criminal contempt if the act occurred in the presence of the court. If the refusal to comply with immunity occurs outside of the court’s presence, the court must provide the person notice in open court stating the time and place of trial, allow the defendant a reasonable time to prepare a defense and state the essential facts constituting criminal contempt. The court must also request the case be prosecuted by a government attorney. The government may decline the request to appoint an attorney or justice may require an outside attorney be appointed, in which case a disinterested attorney will be selected by the court. An individual charged with criminal contempt of court is entitled to a jury trial if the sentence imposed is more than six months confinement or $500 fine. The court is prohibited from imposing a sentence of both imprisonment and a fine for criminal contempt, although this does not preclude a sentence of imprisonment for criminal contempt and a fine for civil contempt arising out of the same refusal to testify.

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