A grand jury witness can try not to testify by claiming the Fifth Amendment right against self-incrimination; however, the prosecutor may defeat this effort by giving the witness immunity from future prosecutions. Here is the example. The petitioners in Kastigar v. United States were summoned before a federal grand jury and given use immunity, but they declined to testify. The petitioners’ first argument was that any immunity statute is illegal because the Fifth Amendment provides an absolute right to refuse to testify regardless of whether immunity is granted. The Court turned down this claim. As a result, an immunity grant may be used to force a witness to testify in front of a grand jury.
Only forced comments that may lead to the discovery of incriminating facts are protected by the Fifth Amendment protection for grand jury witnesses. The evidence is no longer incriminating after a grant of immunity.
Perjury charges can also be brought against an immunized witness who lies before a grand jury.
What is the Difference Between Transactional Immunity Grant and Use Immunity
The prosecution cannot use the forced grand jury testimony against the witness because of “use” immunity. The prosecutor is prohibited from using the forced evidence to provide clues for potential prosecution due to “derivative use” immunity. If the prosecutor depends on proof derived from a source entirely separate from the defendant’s testimony, the witness can still be charged for a crime arising out of the transaction about which the witness testified underuse and derivative use protection.
Rather than transactional immunity, the federal immunity statute allows for use and derivative use immunity. A witness could not be charged for any transaction in which he or she was required to testify under “transactional” immunity.
Petitioners in Kastigar v. the United States argued that the only way to force evidence was to use absolute transactional immunity. The Supreme Court rejected that claim, holding that use and derivative use protection is sufficient because it is coextensive with the scope of the right against self-incrimination.
Immunized Witness Objections to Testifying
There are few reasons for a witness to refuse to testify after they have been granted immunity. Other procedural provisions or protected correspondence can be used by an immunized witness to raise an objection.
The witness can also argue that the immunity given isn’t as expansive as the Fifth Amendment right, or that the questions were obtained through unlawful electronic surveillance. The United States Supreme Court ruled in Gelbard v. the United States that a grand jury witness may refuse to answer questions based on illegal wiretaps. Immunized witnesses in the Gelbard case declined to answer grand jury questions, arguing that the questions were based on illegal electronic surveillance. When the unanswered questions were focused on an unlawful wiretap, the Court ruled that these witnesses, who were kept in civil contempt, could use 18 U.S.C. ß 2515 as protection.
Without a new grant of immunity, a previously immunized grand jury witness can refuse to answer questions in a subsequent proceeding. The United States Supreme Court ruled in Pillsbury Co. v. Conboy that a witness who testifies before a federal grand jury under oath cannot be required to testify about the same events in subsequent civil trials without a new oath. The witness has the right to claim the Fifth Amendment protection against self-incrimination unless a new grant is made.
Objections that are Invalid
An immunized witness, on the other hand, does not refuse to testify on the grounds that the law about which he or she is obligated to testify is unconstitutional or that the witness fears organized crime reprisal, or that the witness fears prosecution by a foreign government.
Furthermore, an immunized witness cannot condition their grand jury testimony on obtaining a copy of previous testimony.
Source that is completely independent
If a witness is granted federal protection, the government must show that all information used in a subsequent trial comes from a credible source that is completely separate from the witness’s immunized testimony. To begin, the defendant must demonstrate that: (1) he or she has testified, (2) pursuant to a grant of immunity, (3) to matters relating to the prosecution.
The government also has the responsibility of proving that their testimony is not compromised by demonstrating that the contested evidence was obtained from an independent and reliable source. The government’s burden is more than just a denial of taint; it also has an affirmative obligation to demonstrate an impartial and valid source.
Contempt of Court For Refusal To Testify
A witness will be held in contempt if he or she refuses to testify despite an immunity grant. Contempt can be civil or criminal, and it can lead to prison time or fines. The sentencing court sentencing a defendant for criminal contempt will impose a sentence similar to contemptuous conduct.
In the case of criminal contempt for refusing to appear before a grand jury to protect friends, the contemptuous behavior is equivalent to obstruction of justice, and the sentencing court may impose a punishment that would be appropriate for obstruction of justice.
Any prison time for civil contempt must end after the grand jury is dissolved, so the witness no longer has the opportunity to purge the contempt after the grand jury is discharged. Even after receiving immunity, a grand jury witness who refuses to testify is entitled to “procedural regularities”—that is, notice and a sufficient amount of time to prove just cause for refusing to answer the questions.
Federal Criminal Attorneys with Norman Spencer PC will protect you in any stage of your federal criminal matter no matter where you are. Please call our office today to speak with a federal criminal lawyer!