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 VOLUME 11 - CHAPTER 257
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257.5 Immunity From Prosecution

    257.5.1 Immunity From Prosecution As Defense Theory
    257.5.2 Denial Of Immunity By Prosecution: Explanatory Instruction

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 VOLUME 11 - CHAPTER 257

PRACTICE NOTE: See Wharton’s Criminal Law (West, 15th Ed. 1993) § 80, p. 569-580.

    See FORECITE National™ 25.5 [Witness Immunity].

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

See Capital Punishment Handbook [3.4a. Prosecutor’s Decision To Grant Immunity: General Principles And Authorities].

See also 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].

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Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 257

RATIONALE: If the prosecution denies immunity to a potential defense witness the jury may unfairly conclude that the defense failed to produce the witness because the testimony would have been adverse to the defendant.

POINTS AND AUTHORITIES: When a party fails to call a witness who the jury would logically expect to be called, there is a substantial potential for prejudice if the jury concludes that the testimony would have been adverse to the party who failed to call the witness. (See FORECITE National™ 36.2.2.5 [Necessity Of Addressing Missing Witness Inference, Even If No Instruction Is Given, To Avoid Negative Inferences].)

    Hence, when the witness asserts the 5th Amendment and the prosecution refuses to grant the witness immunity, any jury assumption that the defendant was responsible for the absence of the witness would be plainly false and unfair. Moreover, since the prosecution has the power to grant immunity and the defendant doesn't, there is a lack of balance which may implicate the due process clause of the federal constitution. (See U.S. v. Westerdahl (9th Cir. 1991) 945 F2d 1083, 1087 [government distorted the judicial factfinding process "[b]y granting immunity to one witness,...who is willing to testify in support of the government's theory, while denying immunity to another witness"]; see also Wardius v. Oregon (1973) 412 US 470, 475 [93 SCt 2208; 37 LEd2d 82]; see also FORECITE National™ 300.12.1 [Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution].)

    Accordingly, an explanatory instruction may be appropriate. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 16.2.).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.5; 4.4; 7.3].

RESEARCH NOTES:

See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) pp. 16-4-5 [includes sample motion].

See also Capital Punishment Handbook [3.4a. Prosecutor’s Decision To Grant Immunity: General Principles And Authorities].

See also 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].

    You must not assume that it was the defendant's decision for ________________ (name of witness) not to testify. __________________ (name of witness) lawfully refused to testify unless [he] [she] was granted immunity. However, only the government may grant immunity. Because the government did not grant _______________ (name of witness) immunity, the defendant was not able to call [him] [her] to testify.

[Source: FORECITE National™.]

    If a witness has immunity, the government cannot use what he says at a trial to prosecute him and, therefore, the witness must testify if called by either party. However, the law allows the prosecution but not the defendant to grant immunity to witnesses.  Therefore, the defendant is not able to grant immunity to witnesses.

[Source: FORECITE National™.]