NCJ Number
80882
Journal
Vanderbilt Law Review Volume: 34 Issue: 6 Dated: (November 1981) Pages: 1665-1726
Date Published
1981
Length
62 pages
Annotation
This article traces the evolution of immunity statutes, examines the multiple analytical approaches recently invoked by the courts in reaching divergent opinions on immunity of defense witnesses, and evaluates the constitutional bases for defense witness immunity.
Abstract
The prosecution presently retains the exclusive power to immunize witnesses in all jurisdictions but the third circuit. The Supreme Court's decision in United States v. Nixon is a basis for the argument that courts should use a flexible separation of powers approach in the context of witness immunity grants. The Court emphasized that the defendant's need to obtain all relevant evidence should outweigh a general claim of executive privilege in a criminal trial. The doctrine of reciprocal discovery lends further credence to the proposition that the defense should have immunity grants available to it and that such immunity should not be dependent on the Government's decision to immunize one of its own witnesses. Initiating a due process claim when the Government denies a request for defense witness immunity is thus feasible. The defense can advance the sixth amendment's guarantee of compulsory process as a final basis for a claim of defense witness immunity. The Supreme Court's holding in Washington v. Texas demonstrates that the sixth amendment guarantees not only the right to compel the attendance of witnesses, but also the right to have them testify. The State's failure to immunize a defense witness violates the defendant's compulsory process rights whenever a competent witness could have provided relevant and material testimony to the defense. The proper method by which to implement defense witness immunity is also discussed. A total of 372 footnotes are provided. (Author summary modified)