What Does It Mean To Be Granted Immunity?

When prosecutors grant a witness immunity, it removes the witness' ability to invoke the Fifth Amendment and refuse to testify. In exchange, the witness gets a guarantee that their testimony won't be used against them in a criminal prosecution. But these protections vary significantly depending on exactly what kind of immunity is offered.

Transactional (or "blanket") immunity is much broader than so-called "use and derivative use" immunity, but also much less common. In this article we'll explain these two main types of immunity, and also discuss what happens if the government tries to prosecute someone who's been granted immunity.

What Is Transactional Immunity?

Transactional immunity is the broadest type of immunity. It offers complete protection from future prosecution for any matter mentioned in the immunized testimony. Because it's so broad, transactional immunity is commonly referred to as "total" or "blanket" immunity. Prosecutors are reluctant to give witnesses this kind of protection from prosecution, and the federal system doesn't use it at all. (You can learn more about how prosecutors decide when to grant a witness immunity.)

Even if a witness does get transactional immunity, that doesn't prevent prosecution for criminal activities that are unrelated to something discussed in the immunized testimony. For example, suppose Witness commits a bank robbery, and Defendant acted as the getaway driver and hid some of the money. The prosecution grants Witness transactional immunity in exchange for admitting his participation in the robbery and testifying against Defendant at Defendant's trial.

During his testimony, Witness reveals that he used some of the hidden money to purchase cocaine from Dealer.

Can Witness be successfully prosecuted for bank robbery? No. The grant of transactional immunity protects him.

Can Witness be successfully prosecuted for buying cocaine? No. Transactional immunity guarantees that Witness cannot be prosecuted for any criminal activity he discussed during his immunized testimony.

What if the prosecution learns elsewhere about a different drug purchase? Imagine that, after Witness testifies in Defendant's trial, the prosecution learns from Dealer that Witness came to him two months before the bank robbery and purchased heroin. Since that purchase is unrelated to the events Witness described in his testimony, testimony, the prosecution can charge Witness for that purchase.

What Is "Use and Derivative Use" Immunity?

Use and derivative use immunity is more narrow than transactional immunity, and is used by both state and federal prosecutors. It offers two related but distinct protections:

• Use immunity prevents prosecutors from using a witness' statements against them.
• Derivative use immunity prevents prosecutors from using any evidence derived from the witness' statements against them.

In theory, use and derivative use immunity provides as much protection as the witness not testifying. However, use and derivative use immunity doesn't prevent prosecutors from gathering additional, independent evidence to later use against a witness. If a witness gives an indication of having committed a crime and the prosecution obtains independent evidence of that crime (from a source distinct from the witness), the witness is subject to prosecution for that crime.

For example, suppose the prosecution grants Witness use and derivative use immunity to testify in Defendant's armed robbery trial. Witness states that after he and Defendant robbed the bank, he used some of the stolen money to buy 100 kilograms of cocaine from Dealer. Witness then sold the 100 kilograms of cocaine to Buyer.

Can the prosecution get Witness for armed robbery? Yes, but the prosecution cannot use Witness's immunized testimony against him. It must rely on independent evidence that Witness robbed the bank—for example, a tip from someone who saw the crime take place.

Can the prosecution go after Witness for cocaine sale? Suppose someone else was present when Witness sold the cocaine to Buyer. This person is later arrested and reveals that he saw this sale. In that scenario, the prosecution has proof of the cocaine sale crime from an independent source, and can use that person's testimony as part of a case against Witness for that crime.

How Do You Raise the Immunity Defense?

A witness who is being prosecuted and intends to claim immunity from prosecution must provide evidence that the prosecution granted immunity and that the testimony in question relates to the current charges. After that, the burden of proof goes to the government.

Prosecutors must show that all of the evidence they intend to use comes from a source independent of the immunized testimony. If the prosecution had access to the immunized testimony, it must reveal how it developed independent evidence against the defendant. It's not enough for the prosecution to simply deny using the immunized testimony—it must present evidence (either written or oral statements) explaining how the evidence doesn't emanate from the defendant's previous testimony. However, it's okay if the prosecution had tangential knowledge of the immunized testimony.

Judges will block prosecutors from presenting evidence that has been obtained through—or even influenced by—a defendant's immunized testimony. And a convicted defendant can appeal, arguing that their testimony was used against them in violation of the Fifth Amendment. (You can learn more about the Fifth Amendment's protections against self-incrimination.)

A famous example of a dispute over the use of immunized testimony is the case against Oliver North. North, a staff member on the National Security Council in the 1980s, was granted limited immunity to testify before Congress about the Iran-Contra Affair. Federal prosecutors later charged North with several crimes, including alleged criminal conduct he'd discussed during his congressional testimony. North was convicted, but a federal appeals court later overturned those convictions.

The North case demonstrates the heavy burden prosecutors must meet when they try to convict someone of crimes they've discussed immunized testimony. Prosecutors had avoided listening to or learning about North's testimony, and none of his testimony was used as evidence against him. And the court did not find that prosecutors had used North's testimony to locate witnesses or gather any other evidence against him.

But the appeals court ruled that this was not enough to show that North's Fifth Amendment rights hadn't been violated. For example, the court noted that North's immunized testimony could have hurt him at his criminal trial because prosecution witnesses probably heard the testimony and used it to refresh their memories. (United States of America v. Oliver L. North, Appellant, 910 F.2d 843 (D.C. Cir. 1990).)

Consult a Lawyer

As we've discussed, any offer of immunity in exchange for testimony has very important consequences for a person's Fifth Amendment rights, and a grant of immunity does not mean a witness no longer has to worry about being prosecuted for a crime. If you have specific questions about how immunity or the Fifth Amendment apply to your situation, an experienced criminal defense lawyer should be able to explain the details and protect your rights.