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How Immunity Works In Federal Criminal Cases

October 6, 2021

The Fifth Amendment of the The Constitution guarantees you the right not to incriminate yourself. Therefore, if a prosecutor asks you a question that would incriminate you, you may invoke the Fifth Amendment. To be incriminating, the question must give direct evidence of a crime or provide evidence that could lead to additional evidence that a crime has been committed. Government attorneys remove the possibility of a witness invoking his or her Fifth Amendment privilege by offering the witness immunity.

Letter Immunity

With letter immunity, you voluntarily agree to testify, so the court is not ordering you to do so. Because the court isn’t ordering you to testify, you would be in danger of making incriminating statements against yourself. Another weakness of letter immunity is the fact that it only applies to one particular district. For example, you can receive letter immunity in district 1, but you may be found to be a suspect in a case in district 2. If the immunized statements that you made in district 1 can be used to prosecute you in the case in district 2, these statements will be used against you. In addition to that, the government attorney can inform officials in other jurisdictions that you testified in the previous case in district 1.

“Use and Derivative Use” Immunity

With use and derivative use immunity, the prosecution may not take a witness’ statements and use them to prosecute him. The government attorney must also not use evidence that came from the witness’ statements to prosecute the witness. It doesn’t, however, prevent the government from investigating the matter further and using additional evidence to prosecute the witness. For example, the witness may admit to committing a crime while giving his immunized testimony. The government attorney may only prosecute the witness after finding independent evidence against the witness.

Breaking the Agreement

It will be difficult for the government attorney to break this agreement because this would require the government attorney to attend an ethics hearing before he or she would be able to prosecute you. At the hearing, the prosecution must prove that the evidence he or she is going to use to convict you did not come from the testimony you gave in the case in which you were immunized. A government attorney is also in danger of being sanctioned if the court discovers that the attorney tried to break your agreement when it wasn’t warranted.

Statutory Immunity

Statutory immunity is the strongest type of immunity. The federal judge examines the testimony that you will give in court, and he or she determines that you have a legitimate right to invoke your Fifth Amendment privilege. In this case, the judge orders you to testify, but the government attorney will not be able to use your statements to prosecute you. You cannot be prosecuted at a later date in the event that the prosecution used your testimony to discover further evidence that you committed a crime.

Refusing to Testify after Receiving Immunity

If you refuse to testify after you have been granted immunity, you may be subject to being held in contempt of court. Then, you may receive a fine, or you may receive a jail sentence. Contempt of court is a charge you would receive if you were to disobey or disrespect the court. It is used to ensure that the judge can maintain order in the court.

In this instance, you would be charged with either civil contempt or criminal contempt. If you are held in civil contempt, you will not have the right to a jury trial. Therefore, the judge may decide to leave you in jail until you agree to testify or until the court case concludes, but you cannot be held for longer than 18 months.

You can also be held in criminal contempt. Rather than coerce you to testify, criminal contempt is used to punish you for not testifying when you were granted immunity. If the court proves that the order to testify was valid and that you willfully disobeyed it, you can be charged with criminal contempt of court. With this type of contempt of court, you will be put on trial. If you are found guilty, you will receive either a fine or a prison sentence.

Hiring a federal criminal attorney is the best action you can take if you are concerned about testifying in court.



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