Immunity – A Guide to Pleading the Fifth and Witness Immunity

If you are asked to testify to a crime you witnessed, you will want to consult a lawyer

Even if a prosecutor mentions granting you immunity for your testimony, you will want to be aware of the legal gray area surrounding this term.  An immunity deal might sound like a saving grace when times are tough; however, it can raise more issues than it solves—especially if you are implicated as a part of the larger crime itself. 

Read along to learn the following about how immunity affects the criminal law process: 

  • Plead The Fifth Amendment and your right not to incriminate yourself; 
  • Immunity and its forms in the criminal justice system; and
  • The problems stemming from immunity and how to arm against them. 

Knowing Your Rights 

You may have some general idea about the extent of your constitutional rights, but there i  s much more than meets the eye when it comes to how they are applied in a court of law.  Our Constitution is over 230 years old; legal scholars, judges, and lawyers alike frequently imagine new ways to interpret and use it. 

You may not know the Fifth Amendment by heart, but it contains a common set of rights you may know from TV and Movies: the right to remain silent and the right to an attorney. What are these? Your Miranda rights

Though the Constitution’s writers included these rights in the original text, the landmark case Miranda v. Arizona in 1966 made reading them to a person in custody an imperative in police procedure. 

The self-incrimination portion of the Amendment protects you from answering a question if you believe it could implicate you in a future criminal case—true in police interrogation and court. You will sometimes hear people “pleading the Fifth” on the news; this does not necessarily mean they committed a crime and do not want to admit to it. It could mean that the witness chose to use their Fifth Amendment rights on the advice of counsel because their statements could lead to direct evidence or information that could lead to a crime.  

Now, wrapping back to the topic of legal minds having all of 230-plus years (or 55, if your starting at Miranda) to think of caveats to self-incrimination—one of the key examples of this, being…

Immunity, and the Power to Compel Testimony

The government wants citizens to testify at trial if they have information on a crime. And in the case of the Fifth Amendment, federal prosecutors grant immunity to witnesses to compel their testimony; it’s a legal avenue to preserve privacy and allow the justice system to proceed.

Courts see two predominant forms of immunity:

  • Use and derivative use immunity, and
  • Transactional immunity 

The first—use and derivative use—prevents the prosecution from using the witness’s statements and any evidence stemming from statements made against the witness. In other words, both “plead the Fifth” and use and derivative use have similar outputs for the witness: insofar as the witness can either make a statement and not face direct prosecution from it or invoke their right to stay silent. Additionally, expect to see this form of immunity used at the state and federal courts. 

The second—transactional—sees usage on a state-by-state basis, but not federal. This form is a bit more generous in scope when compared to derivative use. “Transactional” refers to the agreement between prosecutor and witness, involving their truthful testimony in exchange for blanket immunity from the crime pertinent to the case. This is less common in courts, for unlike derivative use the immunity extended could prevent further prosecution. 

Now, you might be wondering how “further prosecution” and “immunity” go hand-in-hand. What could seem like a good deal might actually open doors to further legal issues. 

Navigating Immunity and Knowing What Could Happen

Derivative use immunity does not bar you from future prosecution—expect the opposite, unfortunately. Though it is not a given a prosecutor will come after you, derivative use allows them to pursue crimes and evidence independent of said testimony. 

Keep in mind: they cannot use your testimony or anything obtained from it to incriminate you in a court of law. However, if a prosecutor obtains outside evidence of your involvement in a crime, they can legally use it to bring charges against you. 

In this case, the burden of proof rests on the prosecutor to show they acquired said information outside the testimony. 

So, what are your options? 

For one, you do not need to accept immunity. Instead, you can wave your Fifth Amendment rights at a few points during the process. Some choose to submit a written intention to waive immunity, while some make voluntary statements without taking it. 

There is the far less advisable and legally binding decision to not testimony altogether after being granted immunity. According to federal law, immunity provides a witness privilege against self-incrimination and rules someone with it may not refuse compliance. However, it comes with a charge of contempt of court and possible jail time. 

At the end of the day, the most advisable and sound path is to hire a lawyer. Finding yourself in a situation where you rely on witness immunity to alleviate legal stress is best accompanied by an experienced criminal defense attorney. By no means should you approach the process without help. 

If you are in need of a criminal defense attorney, contact our offices for a free initial consultation. 

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