If you have been keeping up with important court cases in the news or have ever watched a TV crime drama or two, chances are you’ve probably heard of the legal tactic known as “grant of immunity” or “witness immunity.” It’s an agreement by a prosecutor not to prosecute a person for a given crime or for that persons involvement in that crime in exchange for a witness testimony. This means that even if a person has committed the crime, they will never be held accountable in criminal court for that crime.
There are several instances where prosecutors have compelling reasons to believe that a person committed a crime. The problem is that they have no way of proving it.
Imagine this: Four people live together as roommates in a beach house. One evening at dinner, they have a heated argument. That night, there is a massive fire and two of the roommates escape. But after the fire department puts it out, the body of the third roommate is found on the couch. The coroner determines that the skull of the decedent was crushed and he was dead at the time of the fire. All of the roommates have lawyers and refuse to be interviewed.
Without more evidence, this could be an impossible case for the prosecution to win.
Even if the police are successful in proving that one, two or even all three roommates had to have killed the decedent, they don’t have a way of knowing which one. No matter what they do, there will always be reasonable doubt that any roommate or roommates committed the murder. If police continue to investigate and one of the three remaining roommates comes forward to give evidence that will allow them to prove their case beyond a reasonable doubt, they will offer immunity. The idea is that it is better to give one person immunity to convict a murderer, even if the person getting immunity is also an accomplice of the murderer. If immunity isn’t granted, all of them will go free, and the case is never resolved.
But what if the real murderer is the one who asks for immunity and tries to blame it on someone who is innocent?
To ensure that immunity isn’t granted to the wrong person, it’s never given until after the prosecutor is allowed to interview the one who wants immunity. In order to do this, they have to offer a special kind of immunity called “statement immunity.” Nothing said by the witness during the interview can be used in court. If the prosecutors feel the statement is a lie or useless to them, they will refuse to grant immunity beyond statement immunity.
Generally for immunity to be binding, it has to be in writing and very specific. Does it relate to the statement given, or to the transaction only? For example, let’s say that four days before the murder, the witness committed a robbery, involving another person. Could the witness be prosecuted for that? It depends upon the particular formal grant.
“Transactional immunity” is the best kind of immunity. Lawyers want this type of immunity for their clients because under this grant, the client is completely protected. Unless the client lies, he or she can never be prosecuted for any crime related to this testimony.
A “use immunity” agreement means that nothing said by the witness can be used directly or indirectly against the witness. Prosecutors can get evidence of crimes committed by others and are not prohibited from charging the witness with crimes, if they can prove the crime without using (directly or indirectly) anything said under use immunity. This is a great tool at a grand jury hearing because if a witness invokes the Fifth Amendment, the prosecutor can get around it by giving use immunity.
While strictly speaking, immunity must be formal. But there are times, when in the interest of justice, an informal statement can be given the full force and power of formal immunity. An example of this is if immunity is promised, but not given. The witness, thinking they have immunity, then gives a statement that they would refuse and invoke the Fifth Amendment privilege without it.