The idea of immunity from prosecution is often discussed but is more complex than many people think. Being immunized from prosecution sounds like a good thing, and in many cases it is. But immunity can also be forced upon an unwilling witness who is then no longer able to claim their privilege against self-incrimination to avoid testifying in court in a criminal proceeding.
This blog post will explain what the federal law says about immunity under 18 U.S.C. 6001-6004, how the Department of Justice uses the law when it needs to, and what your federal criminal defense lawyer can do to seek immunity or resist it.
The Federal Immunity Statute
The four sections of federal law we’ll deal with in this blog are 18 U.S.C. §§ 6001-6004. Together, the four sections of the statute define the terms used in the statute, and they extend the power to immunize a witness who testifies in federal court, before a grand jury, before an inquiry of an executive branch agency, or in either house of Congress, or before a congressional subcommittee.
They also dictate the procedures required to immunize a witness and prohibit “the use of any testimony or information directly or indirectly derived from the testimony or information” from being used against the immunized witness in any criminal case, except for perjury, making a false statement, or otherwise failing to comply with the court order directing them to testify.
What It Means to Be Immunized by Federal Authorities
The Fifth Amendment of the Constitution of the United States provides, among other things, that no person shall be compelled to be a witness against themselves. In more familiar terms, that means that the law provides you with the right to remain silent. If truthful answers to questions from officials would “tend” to incriminate you, then you usually have the protection of the 5th Amendment entitling you to not answer, except if you are granted immunity under the federal statute.
The 5th Amendment guarantees that you will not be forced to incriminate yourself. But 18 U.S.C. 6001-6004 provides that if you are granted immunity from prosecution, then the government cannot use anything you say against you in a criminal prosecution, nor can they use “derivative” information. Derivative information is incriminating information that your testimony led authorities to discover even though you never testified to those derivative details.
Since the federal immunity statute protects you from ever being criminally prosecuted based on your immunized testimony or facts learned because of the testimony, then your testimony is not “incriminating.” If your compelled testimony cannot result in your criminal prosecution, it is not considered a violation of your 5th Amendment privilege against self-incrimination.
Unless You Lie
The law prohibits the government from prosecuting an immunized witness using their compelled testimony except if the witness is later charged with perjury, making false statements, or another failure to comply with the court order to testify truthfully. When a witness is granted immunity, either willingly or involuntarily, any sworn testimony they provide must be free from material falsehoods. Violating their sworn oath to provide the truth can be prosecuted as a separate federal crime. Both perjury and making a false statement are punishable by up to 5 years in federal prison for each instance of material falsehood.
Failure to Testify After Immunity Is Granted
A court order granting a witness immunity eliminates the witness’s ability to refuse to answer questions on grounds that the answers will incriminate them. The court is ordering the witness to answer because they no longer risk prosecution. But some witnesses refuse to comply and insist on not answering questions.
Once immunity is granted to a witness, if the witness persists in their refusal to testify without any other legal grounds, then the prosecution will seek, and the court may declare the witness to be in contempt of court for intentional refusal to obey a court order. The court can order the witness to be jailed and held in custody until they “purge” their contempt by agreeing to testify.
That can be accomplished in a “summary” process where the judge orders the witness to be instantly detained. A witness who refuses to testify can be jailed until the end of the grand jury’s tenure, or until the proceeding for which their testimony is needed is ended. If the witness is criminally charged with contempt of court, then they have a right to a trial with all the corresponding rights. If convicted, they can be sentenced to up to 6 months in federal prison and a $1,000 fine.
The Process of Granting a Witness Immunity
When the government seeks a court order granting immunity to a witness, it files a motion in which it must state grounds under the federal statute justifying its request. The law provides that federal prosecutors must demonstrate to the court that:
(1) the testimony or other information from such individual may be necessary to the public interest; and
(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of their privilege against self-incrimination.
The judge to whom the request is made will inquire of the witness whose immunized testimony is being sought to determine whether they do, indeed, intend to refuse to answer questions put to them by prosecutors by invoking their 5th Amendment right to refuse to answer incriminating questions.
The prosecutors will recite the reasons the witness’s testimony is so important or indispensable to their investigation, and the federal judge will decide whether to grant immunity from prosecution to the witness for any truthful answers they provide to government investigators about crimes in which they were involved.
The question of what information “may be” necessary to the public interest is wide open to interpretation, but the court rarely second-guesses the judgment of the Department of Justice. But that’s not to say that the DOJ officials are quick to seek immunity for a witness. In fact, they are very stingy about extending immunity to witnesses, especially if they believe that the witness played a central role in the illegal activity under investigation.
However, situations arise in which the only road government prosecutors can take to convict the “bigger fish” is to grant immunity to a smaller one, even one who actively participated in the alleged crimes.
Why Would You Be Immunized
Granting immunity to a witness is a judgment for which front-line prosecutors need to obtain permission from higher-ranking Justice Department officials. Often, relatively innocent people who may have some exposure to criminal prosecution will be immunized to get the government-specific testimony with which to successfully prosecute someone else.
For example, a bookkeeper who fears they may be prosecuted for knowingly aiding a tax evasion suspect could be immunized because they were low on the list of wrongdoers, and they can deliver important details that could lock a conviction.
In a typical case in which a witness is immunized from prosecution, the witness’s testimony is needed to successfully convict another defendant the government deems to be more culpable, more dangerous, and higher in the hierarchy of the criminal enterprise.
For Immunity Issues, an Experienced Federal Criminal Defense Lawyer Is Needed
If you are subpoenaed to testify about an incident in which you may have exposure to criminal prosecution, you should contact an experienced federal criminal defense lawyer immediately. Depending on the circumstances in your case, your skilled defense lawyer may convince the prosecution to grant you immunity in exchange for the valuable testimony you can provide.
On the other hand, if you are adamant that you do not want to testify (and you don’t want immunity), your attorney can object to the government’s claim that your testimony is necessary. If the information the government desires to obtain from an unwilling witness can be obtained elsewhere, then the court may demand that the government attempt to obtain the information from the other source first.
Every case presents unique facts and circumstances, and you must discuss those details with an experienced criminal defense attorney at the earliest possible time.
Call Tampa’s Federal Defense and Immunity Defense Lawyers Stechschulte and Nell, Attorneys at Law today; 813-280-1244.
