Witness Immunity: You Can't Always Get What You Want

In the arsenal of weapons available to federal prosecutors, a singularly effective one is immunity for witnesses the government deems important to its case. But perhaps equally as effective is the reverse ' the government can decline to request immunity for witnesses who may be critical to the defendant's case. A defendant generally has no standing to contest the grant of immunity to a prosecution witness and has no right to insist that the prosecutor seek immunity for a witness that benefits the defense. However, even though the statutory deck is stacked in the government's favor, sometimes a defendant is able to obtain court-ordered immunity for a defense witness over the government's objection. To borrow from the Rolling Stones, while decisions in the Second Circuit signal that a defendant will find it difficult to get what he wants, others cases arising in the Third and Ninth Circuits suggest that if a defendant tries, sometimes he may be able to get what he needs.