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Immunity from Prosecution
by Gary Muldoon
Muldoon & Getz
Rochester, New Yor
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www.muldoongetz.com
 
Under the Fifth Amendment to the Constitution, a person may not be compelled to testify against himself. The prosecution may require a witness to testify, but to do so, must first confer immunity upon the witness.

Immunity from prosecution may be granted at the grand jury stage, CPL 190.45, as well as elsewhere in a criminal proceeding, typically at trial. Immunity is covered by article 50 of the Criminal Procedure Law and in article 190, regarding grand jury proceedings.
 
Types of immunity
 
There are two types of immunity. "Transactional immunity" is broad: a witness with transactional immunity cannot be prosecuted for the underlying offense, CPL 210.30(1)(d), (4), though the witness can be prosecuted for perjury.

In contrast, "use" immunity is narrower: statements by the witness may not be used against the person, but the prosecution does not agree that it will never prosecute. The person may be prosecuted upon independent and untainted evidence. See 34 NY Jur 2d, Criminal Law: Procedure, § 2383.

New York’s immunity statutes confer full transactional immunity for any topic discussed by the witness during the scope of the proceeding. People v Chin, 67 NY2d 22 (1986).

A witness given use immunity may not be forced to testify and may assert the privilege against self-incrimination. People v Kramer, 123 AD2d 786 (2d Dept 1986).
 
A witness who testifies without asserting the right against self-incrimination does not receive transactional immunity, but may receive use immunity. CPL 50.20(4); People v Flihan, 131 AD2d 269 (4th Dept 1987).

A prosecutor’s informal promise to not prosecute does not confer transactional immunity. People v Dunbar, 53 NY2d 868, 440 NYS2d 613 (1981).

One other distinction between the two types of immunity is that a prosecutor’s violation of use immunity may survive a guilty plea, while violation of the statutory right of transactional immunity is forfeited by a guilty plea. People v Sobotker, 61 NY2d 44 (1984).

Immunity at grand jury stage – the defendant
 
A defendant who seeks to testify before the grand jury must waive immunity in writing. CPL 190.45(2); 190.50(5)(b). With a defective waiver, the defendant’s grand jury testimony renders the defendant immune for all acts that were the subject of the testimony. People v Higley, 70 NY2d 624 (1987).

Immunity at grand jury – witnesses
 
Grand jury witnesses jury normally receive immunity for topics discussed in the testimony. Immunity is conferred automatically, upon giving testimony to the grand jury. Immunity does not occur in three situations: where the witness has waived immunity in writing; where the testimony is not responsive to inquiry and is gratuitously given by the witness; and where what is sought is the production of documents and the witness does not possess the right against self-incrimination with respect to those documents. CPL 190.40. The statutory immunity that a grand jury witness receives is transactional rather than use immunity. CPL 50.10; see People v Chin, 67 NY2d 22 (1986).

For grand jury testimony to confer immunity, it need not be the equivalent of a confession, but must prove some part or feature of the crime and be relevant and admissible to prove an element of the People's direct case. People v McKenna, 250 AD2d 240 (3d Dept 1998).

While documents may be subpoenaed by the prosecutor to the grand jury, the prosecutor does not have the power to compel handwriting exemplars to be given. Absent a waiver, requiring such may confer immunity. People v Perri, 72 AD2d 106 (2d Dept 1980), order affirmed, 53 NY2d 957 (1981); cf. CPL 240.40(2)(b)(vi).

Waiver of immunity
 
A witness may waive immunity. This occurs by a written instrument signed by the witness before testifying in grand jury. CPL 190.45. See People v Cole, 196 AD2d 634 (2d Dept 1993).

Who may confer immunity
 
Apart from grand jury proceedings, a court may confer on a witness immunity from prosecution, but only when expressly requested by the prosecutor to do so. CPL 50.30.
 
At grand jury, the prosecutor acquiesces in immunity. While a prosecutor has discretion whether to pursue a criminal charge, it is not a "competent authority" to confer transactional immunity. CPL article 50. However, a prosecutor's promise not to bring charges (e.g., in exchange for out-of-court cooperation) may confer use immunity. People v Brown, 123 Misc2d 983 (Sup 1984).

Prosecutorial discretion in granting immunity
 
Some witnesses will invoke the Fifth Amendment unless granted immunity, which is solely at the discretion of the prosecution. People v Sapia, 41 NY2d 160 (1976); see also, People v Tatro, 53 AD3d 781  (3d Dept 2008) (harmless error).
 
Yet a prosecutor’s refusal to grant immunity is not unfettered. People v Shapiro, 50 NY2d 747 (1980); see also, US v Bahadar, 954 F2d 821, 826 (2d Cir 1992).
 
As stated in People v Shapiro, supra: "In cases in which witnesses favorable to the prosecution are accorded immunity while those whose testimony would be exculpatory of defendant are not, or in ones where the failure to grant immunity deprives defendant of vital inculpatory testimony, due process may be violated." This infrequently occurs, but did in Shapiro. See also, 34 NY Jur 2d, Criminal Law: Procedure, § 2388.

In People v Adams, 53 NY2d 241 (1981), the Court of Appeals noted that the prosecutor’s discretionary power to refuse to grant immunity is reviewable for abuse if, for example, "the prosecutor builds his case with immunized witnesses but denies the defendant a similar opportunity or affirmatively threatens the defendant's witnesses with prosecution for perjury if they give evidence favorable to the defense."

Witness invoking self-incrimination right at trial
 
If it is known beforehand that a witness will refuse to testify based on self-incrimination grounds, may the witness be allowed to invoke the Fifth Amendment on the witness stand?
 
It is within the trial court’s discretion whether or not to permit a party to place a witness on the stand and require assertion of self incrimination privilege in the jury’s presence. See People v Tatro, 53 AD3d 781 (3d Dept 2008).

© 2008 by Gary Muldoon