PUBLIC HAS A CLAIM TO EVERY MAN'S EVIDENCE - THE DEFENDANT'S CONSTITUTIONAL RIGHT TO WITNESS IMMUNITY

• NCJ Number: 60069
• Journal: Criminal Law Review Dated: (1979) Pages: 385-416
• Author(s): D KOBLITZ
• Date Published: 1979
• Length: 30 pages
• Corporate Author: Clark Boardman Company, Ltd
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: REPRINTED FROM STANFORD LAW REVIEW, V 30, N 1211 (1978)

Annotation

THE RIGHT OF A WITNESS WHO HAS EVIDENCE FAVORABLE TO A DEFENDANT TO RECEIVE IMMUNITY FROM PROSECUTION IN MATTERS REVEALED BY EVIDENCE PRESENTED IN TESTIMONY IS EXAMINED.

Abstract

A DEFENDANT WHOSE WITNESS PLEADS THE FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION IS AT THE MERCY OF THE STATES DISCRETIONARY POWER TO GRANT OR WITHHOLD WITNESS IMMUNITY. WHEN A DEFENSE WITNESS PLEADS THE FIFTH AMENDMENT, THEREBY DENYING THE DEFENDENT VITAL TESTIMONY, THE FEDERAL COURTS AND MOST STATE COURTS DENY THE DEFENDANT ANY RECOURSE. WITHOUT INTERVENTION BY A COURT IN THIS SITUATION, DEFENDANTS MAY BE TRIED WITHOUT THE OPPORTUNITY GUARANTEED BY THE CONSTITUTION TO PRESENT EVIDENCE NECESSARY TO THEIR DEFENSE. FOR MORE THAN 10 YEARS, COURT ANALYSIS OF THE DEFENSE WITNESS IMMUNITY ISSUE HAS BEEN CONSTRICTED BY THE SEPARATION OF POWERS APPROACH TO THE QUESTION. THIS APPROACH, HOWEVER, NOT ONLY UNDERRATES THE POWER OF THE JUDICIARY TO SUPERVISE THE INTEGRITY OF CRIMINAL TRIALS, BUT ALSO DENIES DEFENDANTS THE PROTECTION OF THE EMERGING CONSTITUTIONAL DOCTRINE OF THE RIGHT TO EVIDENCE. FOLLOWING THIS DOCTRINE, COURTS CAN PLACE THE DEFENSE WITNESS IMMUNITY ISSUE WITHIN THE CONTEXT OF THE DUE PROCESS AND SIXTH AMENDMENT GUARANTEES OF ACCESS TO POTENTIALLY EXCULPATORY TESTIMONY. SUCH AN APPROACH LEADS TO A BALANCE OF THE GENERAL STATE INTEREST IN RETAINING CONTROL OF WITNESS IMMUNITY AND THE DEFENSE INTEREST IN FAVORABLE TESTIMONY. THE CONFLICT BETWEEN THESE COMPETING INTERESTS CAN BE RESOLVED BY A HIGH MATERIALITY THRESHOLD FOR EVIDENCE SOUGHT BY THE DEFENSE AND AN IN CAMERA PROCEDURE FOR PREVENTING ABUSE OF THE RIGHT TO THIS EVIDENCE. CURRENT LAW ALLOWS NO MECHANISM FOR DEFENDANTS TO HAVE CRUCIAL WITNESSES IMMUNIZED, SAVE THE GOOD GRACES OF A SCRUPULOUS PROSECUTOR. ALTHOUGH LEGISLATURES HAVE DELEGATED THE POWER TO IMMUNIZE WITNESSES SOLELY TO THE EXECUTIVE, THE COURTS NEVERTHELESS ARE EMPOWERED TO PROTECT THE RIGHTS OF THE PARTIES BROUGHT BEFORE THEM. COURTS SHOULD DENY THEIR SERVICES TO THE EXECUTIVE WHEN THE PROSECUTION WILL NOT EXERCISE ITS DISCRETION TO SAFEGUARD DEFENDANTS' CONSTITUTIONAL RIGHTS. FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED---RCB)