Will I Receive Grand Jury Immunity For Testimony

Will I Receive Grand Jury Immunity For Testimony?

Being called to testify before a grand jury can be an intimidating and stressful experience. Many witnesses worry about incriminating themselves accidentally while testifying. Fortunately, witnesses who are compelled to testify before a grand jury have the right to receive immunity in exchange for their testimony. This article will explain what grand jury immunity is, the different types of immunity, how it works, and what protections it provides.

What is Grand Jury Immunity?

Grand jury immunity refers to legal protections given to certain witnesses who testify before a grand jury. It prevents their testimony from being used against them in future criminal proceedings. Immunity allows witnesses to testify freely without fear of self-incrimination.

There are two main types of immunity:

• Transactional immunity – Also called “blanket” or “total” immunity. This protects the witness from ever being prosecuted for any crime related to their testimony.
• Use and derivative use immunity – More limited. Prevents the witness’s testimony from being used directly or indirectly against them, but allows prosecution using independent evidence.

Federal law only allows prosecutors to grant use and derivative use immunity. However, some states like New York grant full transactional immunity to grand jury witnesses.

How Does Immunity Work?

For a witness to receive immunity, the prosecutor must request it and a judge must approve it. The steps are:

1. Prosecutor requests immunity – The prosecutor petitions the court to grant a witness immunity. This request explains why the testimony is needed and how it serves the public interest.
2. Judge approves immunity order – The judge reviews the prosecutor’s request and issues a written court order formally granting immunity to the witness.
3. Witness receives immunity – With the immunity order in place, the witness can now testify freely without invoking their Fifth Amendment right against self-incrimination.
4. Witness testifies – The witness provides complete and truthful testimony before the grand jury, knowing they cannot be prosecuted for anything related to their testimony.

The immunity order only applies to the specific grand jury proceeding it was granted for. The witness could still potentially face prosecution on unrelated matters.

What Protection Does Immunity Provide?

The extent of protection depends on whether transactional or use/derivative use immunity is granted:

• Transactional – Absolute immunity from prosecution for any crime related to the testimony. Essentially a “free pass” for those actions.
• Use/derivative use – More limited. The witness’s testimony cannot be used directly or indirectly against them, but they can still be prosecuted using independent evidence.

If a witness who received use/derivative use immunity is later prosecuted, the burden is on the prosecution to prove that all evidence came from sources completely independent of the witness’s immunized testimony. This often protects the witness from prosecution in practice.

However, immunity does not prevent a perjury prosecution if the witness lies during immunized testimony. Witnesses must still testify truthfully even with immunity.

Can a Witness Waive Immunity?

Yes, a witness who receives immunity can choose to later waive it. Reasons a witness may want to waive immunity:

• They wish to voluntarily make incriminating statements to law enforcement.
• They want to testify on their own behalf in court (such as claiming self-defense).
• They believe wrongly granted immunity may be overturned.

Waiving immunity must be done explicitly in writing. It cannot be assumed or implied. Once waived, the witness can face prosecution based on their testimony.

When is Immunity Used?

Some common situations where prosecutors grant immunity:

• To compel testimony from accomplices or underlings against leaders of criminal organizations.
• To get eyewitness testimony from minor participants in a crime.
• To force testimony from family members or close associates who invoke their Fifth Amendment right not to testify against relatives.
• To motivate reluctant witnesses who fear retaliation if they testify.
• To secure testimony necessary to convict dangerous offenders who may otherwise go free.

Immunity is used as a last resort when critical testimony cannot be obtained otherwise. It should only be given when clearly serving the public interest.

Can Immunity Backfire on Prosecutors?

Yes, granting immunity can potentially backfire on prosecutors if done improperly:

• It may prevent prosecuting immunized witnesses for serious crimes.
• Witnesses may lie or withhold information despite immunity.
• Defense attorneys may argue charges are based on immunized testimony.
• Juries may distrust witnesses who received immunity deals.

To avoid problems, prosecutors are careful who they grant immunity to and avoid immunizing witnesses unnecessarily. Getting approval from a judge helps ensure immunity serves justice.