Chapter 25

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25.5 Witness Immunity

    25.5.1 Immunized Witness To Be Viewed With Greater Caution Or Distrust: Exposure To Perjury From Immunity Agreement
    25.5.2 Testimony Under Grant Of Immunity: Greater Caution Than Ordinary Witness
    25.5.3 Witness Immunity: FBI Agents Have No Authority To Confer Use Immunity
    25.5.4 Denial Of Immunity By Prosecution: Explanatory Instruction
    25.5.5 Immunity Agreement: Jurors May Not Consider Prosecutor’s Belief As To Truthfulness Of Witness

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25.5.1 Immunized Witness To Be Viewed With Greater Caution Or Distrust: Exposure To Perjury From Immunity Agreement

RATIONALE: An immunized witness has a special incentive to implicate the defendant if prior testimony of the witness or affidavits executed by the witness pursuant to the immunity agreement would expose the witness to perjury charges if the witness does not implicate the defendant.

POINTS AND AUTHORITIES: See O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 15.03 [Immunized Witness] (West, 5th ed. 2000).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

RESEARCH NOTES:

See Benchbook For U.S. District Court Judges [5.02.1 Grants Of Immunity: Procedures].

See also Benchbook For U.S. District Court Judges [5.03 Invoking The 5th Amendment].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 2.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.14.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.07.

See also 7th Circuit Federal Jury Instructions - Criminal 3.13.

See also 8th Circuit Model Jury Instructions - Criminal 4.04.

See also 9th Circuit Model Jury Instructions - Criminal 4.9.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.3.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 24.

SAMPLE INSTRUCTION # 1:

The evidence establishes that __________[insert name of immunized witness] was granted immunity from prosecution by the prosecutor in exchange for [his] [her] testimony. Once a witness has received immunity in the expectation that [his] [her] testimony will implicate the defendant, contrary testimony at trial -- regardless of its truth -- will subject the witness to possible perjury charges. Thus, an immunized witness has a considerable interest in testifying in a manner which is acceptable to the prosecutor. You should view [his] [her] testimony with distrust.

PRACTICE NOTE: The above instruction is to be distinguished from the situation where the jury is told that the immunized witness is subject to prosecution for perjury if he or she intentionally lies under oath. Such a comment would be improper. (See U.S. v. Dwyer (1st Cir. 1988) 843 F2d 60, 63-64.)

SAMPLE INSTRUCTION # 2:

    An immunized witness is one who has been told either that [his] [her] crimes will go unpunished in return for testimony or that [his] [her] testimony will not be used against [him] [her] in return for that cooperation. The testimony of an immunized witness must be weighed with greater care than the testimony of someone who is testifying without such an agreement with the government.

    ____________________ is an immunized witness in this case.

    Consider whether _______________'s testimony has been affected by self interest, or by the agreement [he] [she] has with the government, or by [his own] [her own] interest in the outcome of this case, or by prejudice against the defendant.

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25.5.2 Testimony Under Grant Of Immunity: Greater Caution Than Ordinary Witness

RATIONALE: Because an offer or grant of immunity can be a powerful incentive for a witness to alter his or her testimony, it may be appropriate to instruct the jury regarding these dangers.

POINTS AND AUTHORITIES: See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.9, ¶ 2 [Testimony Of Witness Under Grant Of Immunity] (2000); 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instructions 1.3 [Accomplice-Addictive Drugs-Immunity] (1997); see also Robinson, Criminal Law Defenses (West, 1984) 205, 206.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

RESEARCH NOTES:

See Benchbook For U.S. District Court Judges [5.02.1 Grants Of Immunity: Procedures].

See also Benchbook For U.S. District Court Judges [5.03 Invoking The 5th Amendment].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 2.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.14.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.07.

See also 7th Circuit Federal Jury Instructions - Criminal 3.13.

See also 8th Circuit Model Jury Instructions - Criminal 4.04.

See also 9th Circuit Model Jury Instructions - Criminal 4.9.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.3.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 24.

SAMPLE INSTRUCTION # 1:

In evaluating __________’s testimony, you should consider whether the testimony may have been influenced by the government’s promise of immunity given in exchange for it, and you should consider the testimony with greater caution than that of ordinary witnesses.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.9, ¶ 2 [Testimony Of Witness Under Grant Of Immunity] (2000).]

SAMPLE INSTRUCTION # 2:

So, while a witness of that kind may be entirely truthful in testifying, you should consider that testimony with more caution than the testimony of other witnesses.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL TRIAL INSTRUCTION 3 [Cautionary Instruction-Similar Acts Evidence] (1997).]

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25.5.3 Witness Immunity: FBI Agents Have No Authority To Confer Use Immunity

PRACTICE NOTE: FBI agents have no authority of their own to confer use immunity on informers. (U.S. v. Flemmi (1st Cir. 2000) 225 F3d 78.) "The short of it is that the power to prosecute plainly includes the power not to prosecute (and, thus, the power to grant use immunity), whereas the power to investigate does not necessarily encompass (or even reasonably imply) the power to grant use immunity. Because the more specific source of authority must prevail when such a clash occurs, United States Attorneys' power to make promises of immunity trumps the FBI's more generalized claim. The end result brings coherence to the law: just as applications for formal grants of use immunity are the exclusive prerogative of United States Attorneys under 18 USC 6002, [citation], so too are informal grants of use immunity under current conditions." (Flemmi, 225 F3d at 86; see also see United States v. Graham (8th Cir. 1977) 548 F2d 1302, 1315.)

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25.5.4 Denial Of Immunity By Prosecution: Explanatory Instruction

See FORECITE National™ 257.5.2 [Denial Of Immunity By Prosecution: Explanatory Instruction].

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25.5.5 Immunity Agreement: Jurors May Not Consider Prosecutor’s Belief As To Truthfulness Of Witness

SAMPLE INSTRUCTION:

    You have heard reference in the testimony that a witness had an agreement to give truthful testimony. Whether or not [his] [her] testimony is truthful will be a question solely for the jury to decide after hearing all of the evidence in the case.

    The prosecuting attorney is not in a position to have any specialized knowledge or opinion about whether [his] [her] testimony is truthful or not. You may not consider someone else's opinion, whether it's a government official or anyone else, about whether [his] [her] testimony is truthful or not.

    The jury is not permitted in a criminal case to consider people's opinions about whether someone is telling the truth. You must disregard any insinuation that the government generally or this prosecuting attorney individually believes or doesn't believe any part of [his] [her] testimony.

    Whether her testimony is truthful or not, and credible, is solely for the jury to determine. You will be sizing up the credibility of all the witnesses in the case.

[Commonwealth v. Marrero (MA 2002) 766 NE2d 461.]