NCJ Number
18149
Journal
St John's Law Review Volume: 48 Issue: 2 Dated: (DECEMBER 1973) Pages: 347-354
Date Published
1973
Length
8 pages
Annotation
EXAMINES THE FEDERAL IMMUNITY OF WITNESSES ACT AS IT IS APPLIED TO DEFENDANTS FROM WHOM INFORMATION IS DESIRED IN CRIME AREAS RELATED TO THE CHARGES AGAINST HIM.
Abstract
GOLDBERG WAS ARRESTED AND ARRAIGNED AND CHARGED WITH POSSESSION OF TREASURY BILLS 'KNOWN TO HAVE BEEN STOLEN FROM A BANK IN VIOLATION OF 18 U.S.C. 2113 (C)'. SIX MONTHS LATER, HE APPEARED UNDER SUBPOENA BEFORE A GRAND JURY INQUIRING INTO 'POSSIBLE VIOLATIONS OF FEDERAL LAW ON THAT SUBJECT.' GOLDBERG REFUSED TO TESTIFY, RELYING ON HIS FIFTH AMENDMENT PRIVILEGE. THE COURT THEN GRANTED GOLDBERG 'USE AND DEPRIVATIVE USE' IMMUNITY AND ORDERED HIM TO TESTIFY. GOLDBERG AGAIN DECLINED TO ANSWER THE QUESTIONS BEFORE THE GRAND JURY AND WAS SUBSEQUENTLY ADJUDGED IN CONTEMPT OF COURT. ON APPEAL, GOLDBERG ARGUED THAT IT WAS NEVER THE LEGISLATIVE INTENT OF THE FEDERAL IMMUNITY OF WITNESSES ACT TO COMPEL AN ACTUAL DEFENDANT TO TESTIFY UNDER THE LIMITED PROTECTION OF 'USE PLUS DERIVATIVE USE' IMMUNITY BEFORE A GRAND JURY INVESTIGATING THE VERY CRIMES WITH WHICH HE WAS CHARGED. THE SECOND COURT OF APPEALS RULED THAT THERE IS NO CONSTITUTIONAL OR STATUTORY BAR TO COMPELLING A POTENTIAL DEFENDANT TO TESTIFY UNDER THE GRANT OF IMMUNITY BEFORE A GRAND JURY WHICH IS NOT BEING ASKED TO INDICT HIM. UNDER THIS RULING THE EVIDENCE AGAINST A DEFENDANT CAN BE CERTIFIED PRIOR TO HIS TESTIMONY UNDER IMMUNITY, AND ADDITIONAL INFORMATION CAN BE EXTRACTED IN IMMUNITY QUESTIONING THAT CAN AID IN THE CONVICTION OF ANOTHER PARTY, PROVIDING THE TESTIMONY IS NOT BEFORE THE GRAND JURY THAT WILL CONSIDER THE DEFENDANT'S INDICTMENT. THE AUTHOR CONSIDERS THIS A VALID CONSTITUTIONAL RULING THAT PROTECTS THE RIGHTS OF THE ACCUSED AND PROVIDES A USEFUL TOOL FOR THE PROSECUTION.