Immunity is required if there is to be a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify[i]. It is to be noted that a privilege once established is overcome only where coextensive protection, for example, immunity, is assured at the time the answer is compelled. To overcome the privilege, the extent of the immunity has to be of such a nature that it protects, not only against state prosecution, but also against any reasonably probable federal prosecution[ii].
It is to be noted that, there are two sources of immunity[iii]:
- formal, or statutory immunity,
- informal, or pocket immunity.
Statutory immunity is the immunity granted by statute when a witness is summoned to testify at a trial or before a grand jury and refuses to do so by invoking his/her Fifth Amendment privilege against self-incrimination. The main distinguishing feature of an informal immunity agreement with a grant of statutory immunity is that informal immunity cannot be unilaterally imposed by the state on a witness. Informal immunity, by its nature requires an agreement between a witness and prosecutorial officials. Whereas, testimony under a grant of statutory immunity is always a compelled one[iv].
Generally, the privilege against self-incrimination is not applicable when the evidence sought to be elicited can in no event tends to convict the witness of an offense of any federal or state laws, even though the effect of the witness’s testimony will be to establish a breach of the law. However, a witness has no right to request immunity, although the effect of his/her testimony will be to establish a breach of the law, if the statute of limitations has run.
It is to be noted that if a person is granted a pardon, then s/he will not posses any privilege against self-incrimination and the witness has no right to request immunity. However, the mere tender of a pardon will not take away the privilege against self-incrimination. The witness can reject the pardon and refuse to testify on the ground that the testimony can incriminate him/her.
A legislature is empowered to deprive a witness of the constitutional privilege against self-incrimination by providing him/her complete immunity from prosecution for the offense to which the testimony relates. Such statutes are designed to serve as substitutes for the Fifth Amendment right. The only true test of the constitutionality of an immunity statute is whether the result under such a statute is the same as if the witness retained his/her Fifth Amendment right and did not testify[v].
Similarly, the granting of immunity is considered a function of the prosecution as well[vi]. The purpose of immunity statutes is to aid prosecuting officers in apprehending criminals, or those engaged in criminal enterprises, by inducing them or their confederates to provide evidence and tell on each other.[vii]
It is to be noted that a defendant in a criminal proceeding will not have a right to grant immunity to witnesses. Moreover, even though a defendant is faced with a witness who invokes his/her privilege against self-incrimination, it is not a ground to grant immunity[viii]. The granting of immunity to a witness involves an exercise of discretion in a matter of public policy. It will be taken into consideration whether the public interest will be served best by exchanging immunity from prosecution for testimony[ix]. However, in the absence of some express constitutional or statutory provision, a prosecutor has no inherent authority to grant immunity against prosecution[x].
Generally, a federal court has no power to issue immunity sua sponte, as the power to grant immunity lies only with the executive. A court may scrutinize the record to ascertain that a request for immunity is jurisdictionally and procedurally well-founded and accompanied by the approval of the Attorney General. A federal court cannot prescribe immunity on its own initiative or determine whether application for an immunity order is necessary, advisable, or reflective of the public interest[xi]. However, under special circumstances, a court may be compelled to grant a defense witness immunity.
[i] Lefkowitz v. Turley, 414 U.S. 70 (U.S. 1973).
[ii] In re Watson, 293 Mich. 263 (Mich. 1940).
[iii] State v. Edmondson, 714 So. 2d 1233 (La. July 8, 1998).
[v] State v. Jones, 213 Neb. 1 (Neb. 1982).
[vi] McCabe v. State, 98 Nev. 604 (Nev. 1982).
[vii] State v. Buchanan, 110 Ariz. 285 (Ariz. 1974).
[viii] McCabe v. State, 98 Nev. 604 (Nev. 1982).
[ix] State v. Buchanan, 110 Ariz. 285 (Ariz. 1974).
[x] State v. Miller, 178 W. Va. 618 (W. Va. 1987).
[xi] United States v. Davis, 623 F.2d 188 (1st Cir. R.I. 1980).