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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.
An Often One-Sided Contest
Under 18 U.S.C. ' 6003, a federal prosecutor may request that the court immunize a trial or grand jury witness where, in the government's judgment, the testimony “may be necessary to the public interest” and the individual “has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.” The statute presents the unusual circumstance where a court has little leeway, for it provides that the court “shall” issue an order requiring an individual to give testimony upon the request of the prosecutor. Similarly, the federal government can offer “letter immunity.” Needless to say, the opportunity for use, and abuse, abounds. The ability to procure immunity for a witness enables the government to marshal potentially vital testimony against a defendant by preventing a witness from invoking his Fifth Amendment privilege against self-incrimination. Nowhere is the value of this tool more evident than in the case of a co-conspirator who, upon a grant of immunity, is freed from the specter of prosecution and is judicially directed to testify against the defendant.
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