U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

Right to Immunity for Defense Witnesses (From Criminal Law Review - 1989, P 225-273, 1989, James G. Carr, ed. -- See NCJ-121027)

NCJ Number
R W Gordon
Date Published
49 pages
This article examines the developmental history of Federal prosecutorial immunity and details conflicting opinions among Federal circuit courts as to whether a defendant has a constitutional right to obtain use immunity for defense witnesses to compel testimony that would exculpate the defendant.
The background for the development of statutory immunity is explored, beginning with the first Federal immunity statute enacted by Congress in 1857. Transactional and use immunity statutes are discussed, as well as relevant cases in which the Supreme Court has expanded the defendant's right to present witnesses capable of giving material exculpatory testimony. While the Supreme Court has not yet ruled on the issue of defense witness immunity, there is a growing recognition by lower courts of the unfairness of depriving a possible innocent defendant of the opportunity to present exculpatory evidence. The article concludes that the conflict among Federal circuit courts could be resolved by finding a qualified Constitutionally-based right for defense witness immunity under the fifth, sixth, and fourteenth amendments to the U.S. Constitution. 201 footnotes.