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Use immunity is traditionally viewed as a prerogative of the Executive Branch exercised by law enforcement to compel truthful testimony from witnesses who otherwise would refuse to testify based on their Fifth Amendment right against self-incrimination. However, a few federal courts also recognize the court's inherent authority to grant or compel immunity for defense witnesses over the objection of the prosecution. A recent decision out of the Middle District of Pennsylvania may revive the doctrine of “judicial immunity” for defense witnesses. U.S. v. Nagle, Crim. No. 1:09-CR-384-01 (M.D.Pa. filed Oct. 4, 2010) (Rambo, J.). To understand the potential implications of Nagle, some background is helpful.
Government-Initiated Use Immunity
Absent a cooperation guilty plea agreement, a witness with exposure in a federal prosecution usually will only provide trial or grand jury testimony after receiving some measure of assurance that what he or she says will not subject him or her to criminal prosecution. There are two kinds of protection usually available to such a witness, both of which require the prosecutor's acquiescence: 1) “informal” use immunity obtained via a contractual agreement with a U.S. Attorney's Office; and 2) “formal” use immunity obtained via a formal court order. 18 U.S.C. ” 6002-03 (formal immunity); U.S.A.M. ' 9-23.100; DOJ Crim. Resource Manual at 719 (letter immunity). Whether to push an Assistant U.S. Attorney (AUSA) for formal immunity, and how hard, are tactical decisions that witnesses and their attorneys must make based on the facts of each case, including the evidence against the witness, the witness' exposure and the value of her testimony to the government.
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