REFLECTIONS ON THE ROLE OF STATUTORY IMMUNITY IN THE CRIMINAL JUSTICE SYSTEM

• NCJ Number: 61233
• Journal: Journal of Criminal Law and Criminology Volume: 67 Issue: 2 Dated: (JUNE 1976) Pages: 143-154
• Author(s): W J BAUER
• Date Published: 1976
• Length: 12 pages
• Corporate Author: Northwestern University; Williams and Wilkins Co
• Publication Format: Article
• Publication Type: Historical Overview
• Language: English
• Country: United States of America

Annotation

HISTORICAL PERSPECTIVES, THE MODERN CONTEXT, AND FUTURE DIRECTIONS FOR STATUTORY WITNESS IMMUNITY ARE EXAMINED.

Abstract

TO PROTECT A WITNESS' FIFTH AMENDMENT PRIVILEGE WHILE ALLOWING FOR THE OBTAINING OF EVIDENCE NECESSARY TO PROSECUTE CRIME, IMMUNITY STATUTES WERE DEVISED. THE GENESIS OF TODAY'S USE OF DERIATIVE IMMUNITY IS FOUND IN MURPHY V. WATERFRONT COMMISSION, WHERE IT WAS DETERMINED THAT A WITNESS GRANTED IMMUNITY COULD NOT BE PROSECUTED FOR CRIMINAL ACTS REVEALED IN HIS TESTIMONY, UNLESS THE EVIDENCE USED IN SUCH PROSECUTION WAS NOT DERIVED DIRECTLY OR INDIRECTLY FROM THE COMPELLED TESTIMONY. THIS DECISION DEPARTED SIGNIFICANTLY FROM THE 1892 CASE OF COUNSELMAN V. HITCHCOCK, WHICH PREVENTED ANY PROSECUTION FOR A CRIMINAL ACT RELATED TO THE TESTIMONY, WHETHER OR NOT EVIDENCE MIGHT BE OBTAINED FROM AN INDEPENDENT SOURCE. THE 1970 ORGANIZED CRIME CONTROL ACT ESTABLISHED USE IMMUNITY ON THE FEDERAL LEVEL, AND ITS CONSTITUTIONALITY WAS ESTBLISHED IN THE SUPREME COURT DECISON OF KASTIGAR V. THE UNITED STATES. ARGUMENTS AGAINST 'USE' IMMUNITY, WHICH PERMITS PROSECUTION OF AN IMMUNE WITNESS FOR A CRIME MENTIONED IN COMPELLED TESTIMONY SO LONG AS INDEPENDENT EVIDENCE IS PRESENTED THE PROSECUTION OF THE IMMUNE WITNESS, INCLUDE (1) A ZEALOUS PROSECUTOR CAN SELECT TARGETS OF PROSECUTION FOR SUBJECTIVE REASONS; (2) A WITNESS IS VULNERABLE TO RETALIATION BY FELLOW CRIMINALS; (3) IT IS UNFAIR TO THE DEFENDANT BECAUSE THE DEFENSE CANNOT GRANT WITNESS IMMUNITY; AND (4) THE WITNESS CAN STILL BE PROSECUTED ON THE BASIS OF THE COMPELLED TESTIMONY IN JURISDICTIONS NOT UNDER UNITED STATES LAW. IN FUTURE INTERPRETATIONS OF USE IMMUNITY STATUTES, THE MAJOR PROBLEM WILL BE DETERMINING WHAT CONSTITUTES EVIDENCE FROM AN INDEPENDENT SOURCE IN THE PROSECUTION OF WITNESSES WHO HAVE GIVEN COMPELLED TESTIMONY. THE BEST APPROACH FOR DEALING WITH THE TAINTED EVIDENCE PROBLEM WOULD BE TO ALLOW APPROACH FOR DEALING WITH THE TAINTED PROBLEM WOULD BE TO ALLOW DEFENSE COUNSEL TO MAKE A CONTINUING OBJECTION THROUGHOUT THE TRIAL AGAINST EVIDENCE BELIEVED TO BE IMPROPER. IF IT BECOMES CLEAR TO THE JUDGE THAT SOME EVIDENCE OR PART OF THE INVESTIGATION WAS DERIVED FROM IMMUNIZED TESTIMONY, A MISTRIAL CAN BE DECLARED. FOOTNOTES ARE INCLUDED. (RCB)