NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 3: Capital Punishment Handbook: Guilt Phase Issues

        3.4  Prosecutor’s Decision To Grant Witness Immunity

A criminal defendant is not entitled to compel the government to grant immunity to a witness. United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989). However, this general rule does not apply when a prosecutor’s refusal to grant immunity to a defense witness intentionally distorts the fact finding process and denies the defendant a fair trial. United States v. Lord, 711 F.2d 887 (9th Cir. 1983).

United States v. Westerdahl, 945 F.2d 1083 (9th Cir. 1991) (stating Lord does not require a showing that testimony is either exculpatory or essential to defense).  

United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989) (stating general rule that a criminal defendant is not entitled to compel the government to grant immunity to a witness).

Jeffers v. Ricketts, 832 F.2d 476, 479 (9th Cir. 1987) (following Lord, finding no prima facie case of relevance and distortion in prosecution’s refusal to grant immunity to defense witness), rev’d on other grounds, 497 U.S. 764 (1990).

United States v. Lord, 711 F.2d 887 (9th Cir. 1983) (holding that prosecution’s denial of immunity to defense witness amounts to due process violation where testimony was relevant to defense and prosecutor acted with deliberate intention of distorting fact finding process).

Sheree Strom Carson, Note, Walking the Thin Line in Otey v. Stenberg: Did the AG’s Dual Role of Arbiter and Prosecutor Shock the Conscience?, 73 Neb. L. Rev. 483 (1994) (analyzing Otey dissent and procedural vs. substantive due process claims).

Kenneth Rosenthal, Prosecutor Misconduct, Convictions, and Double Jeopardy: Case studies in an Emerging Jurisprudence, 71 Temp. L. Rev. 887 (1998) (discussing prosecutor’s exercise of power in cases that go to trial).