Last Updated on: 15th October 2023, 07:39 am

How Immunity Works In Federal Criminal Cases

Immunity is a powerful tool in federal criminal cases. It allows prosecutors to obtain critical information and testimony in exchange for not prosecuting someone for their role in a crime. This article will explain how immunity works, the different types of immunity, and when it may be offered.

What is Immunity?

Immunity refers to an agreement between prosecutors and an individual that allows the individual to avoid prosecution for their involvement in a crime, in exchange for providing information or testimony. Immunity takes away a person’s Fifth Amendment right against self-incrimination, allowing them to be compelled to testify without their statements being used against them.

The goal of immunity is to allow prosecutors to gather evidence and build cases against more significant criminals. A drug mule may be offered immunity to testify against a major trafficker, for example.

Why Do Prosecutors Offer Immunity?

Federal prosecutors have broad discretion on whether to offer immunity. It is typically offered when:

• Someone has valuable information about co-conspirators higher up in a criminal organization
• Someone is facing minor charges but can provide testimony against someone facing major charges
• Someone witnessed a crime but refuses to testify out of fear of self-incrimination

Prosecutors conduct a cost-benefit analysis. They weigh the value of the testimony against letting someone off the hook. Immunity allows them to secure the information they need to convict more dangerous criminals.

Types of Immunity

There are two main types of immunity in federal criminal cases – “transactional” immunity and “use/derivative use” immunity.

Transactional Immunity

This offers the highest level of protection. Transactional immunity prevents the government from prosecuting the witness for any act about which they testify. Even if other evidence is uncovered, the witness cannot be charged for the crimes they testified about.

Transactional immunity is very rare in the federal system. It still exists in some state jurisdictions.

Use/Derivative Use Immunity

Also called “use and fruits” immunity, this is the most common federal immunity. It is also referred to as “Queen for a Day” immunity.

Use/derivative use immunity only protects the actual statements made under the immunity deal. Anything derived directly or indirectly from those statements also cannot be used to build a case against the witness.

However, prosecutors can still charge the witness if they obtain independent, wholly separate evidence. So the witness words don’t provide a blanket shield for other crimes.

How Immunity Agreements Work

Immunity negotiations happen between the prosecutor and the witness’s defense attorney. The initial proffer session allows a witness to tell what they know, subject to immunity.

If the information is valuable, prosecutors will draft an immunity agreement letter. This formally grants use and derivative use immunity for the witness’s statements.

The letter may include requirements to testify truthfully before grand juries, at trials, or in other proceedings. There are often proffer session requirements too.

Violating the agreement by lying, refusing to testify, or disclosing the negotiations prematurely can lead to criminal charges. Honesty is essential.

Limits on Immunity Agreements

Immunity has some important limitations:

• Perjury – The agreement does not prevent a perjury charge for lying under oath.
• Other Crimes – Unrelated crimes can still be prosecuted if evidence didn’t stem from immunized statements.
• State Charges – Federal immunity only binds federal prosecutors. But some agreements offer protection from state charges too.
• Sentencing Facts – Immunized testimony cannot increase sentencing exposure or guidelines levels.

When Is Immunity Offered?

• Cooperating Witnesses – Immunity may be given to figures low in a criminal enterprise to allow prosecution of higher-ups. Someone facing a potential 20-year sentence may cooperate in exchange for immunity from prosecution.
• Defense Witnesses – The defense may request immunity for a witness who refuses to testify, even if it hurts the prosecution’s case. But this is rare.
• Victims – If a victim was involved in criminal activity related to their victimization, like illegal drug use, they may need immunity to testify without self-incrimination concerns.
• Spouses – Immunity is sometimes offered to a defendant’s spouse to compel their testimony at trial.

Getting Legal Representation

The decision to accept immunity is an important one with lifelong implications. Witnesses may be testifying against former friends and associates and admitting their own role in crimes.

Experienced federal defense counsel is essential when immunity is on the table. Negotiating favorable immunity terms takes finesse. There are also very specific procedural rules that must be followed.

A lawyer can advise on the different types of immunity and whether the offer is reasonable. They can negotiate the best possible deal under the circumstances. And they can ensure the agreement is properly executed and binding.

The Bottom Line

Immunity is a unique bargaining chip in federal criminal cases. It allows prosecutors to secure critical evidence by removing the threat of prosecution for witnesses. Different types of immunity offer varying degrees of protection.

The decision to accept immunity should not be taken lightly given the potential consequences. Consulting with a seasoned federal criminal defense attorney is crucial when an immunity deal is possible. With expert guidance, an appropriate agreement can be negotiated that satisfies both prosecutors and the witness.