Grand jury witnesses in criminal proceedings (particularly those who are or may become subjects or targets) often find themselves in a catch-22 situation. Testify and risk criminal charges. Or, assert the Fifth Amendment privilege and risk creating a false impression of guilt. Or, obtain (if possible) as much protection as possible via immunity.
A. Federal Grand Jury
Pursuant to Title 18 U.S.C. § 6002 (i.e., the use immunity statute), depending on circumstances, federal prosecutors can and will offer use immunity, but not transactional immunity. Transactional immunity is better of the two because it affords more protection to witnesses from prosecution for the offense or offenses involved. Use immunity is less desirable because it only protects the witness against the government’s use of his or her immunized testimony in a prosecution of the witness, but the witness could face subsequent prosecution if he/she is accused of perjury or giving a false statement.
The use immunity statute (18 U.S.C. § 6002) allows the government to prosecute the witness using evidence obtained independently of the witness’s immunized testimony. Section 6002 provides:
[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
The Supreme Court upheld the statute in Kastigar v. United States, 406 U.S. 441 (1972). In so doing, the Court emphasized the prohibition against the government’s derivative use of immunized testimony in a prosecution of the witness. The Court reaffirmed the burden of proof that, under Murphy v. Waterfront Commission, 378 U.S. 52 (1964), must be borne by the government to establish that its evidence is based on independent, legitimate sources: “This burden of proof, which we affirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar, supra, at 460.
“Pursuant to the federal use immunity provisions, . . . a United States Attorney may request an order from a federal court compelling a witness to testify even though he has asserted his privilege against self-incrimination,” in exchange for use immunity. Pillsbury Co. v. Conboy (1983) 459 U.S. 248, 249; 18 U.S.C. §§ 6002, 6003. Such orders extend to “any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to . . . a grand jury of the United States.” 18 U.S.C. § 6003.
B. California State Grand Jury
In California, under California Penal Code Section 1324, state prosecutors have the discretion to offer either transaction or use immunity. Section 1324 provides:
In any felony proceeding or in any investigation or proceeding before a grand jury for any felony offense if a person refuses to answer a question or produce evidence of any other kind on the ground that he or she may be incriminated thereby, and if the district attorney of the county or any other prosecuting agency in writing requests the court, in and for that county, to order that person to answer the question or produce the evidence, a judge shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he or she would have been privileged to withhold the answer given or the evidence produced by him or her, no testimony or other information compelled under the order or any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminal case. But he or she may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order. Nothing in this section shall prohibit the district attorney or any other prosecuting agency from requesting an order granting use immunity or transactional immunity to a witness compelled to give testimony or produce evidence.
As described in Section 1324, the procedure for obtaining an order to compel testimony in exchange for use immunity is initiated by refusal to answer a question on the ground of self-incrimination. The prosecutor then requests that the court order the witness to answer. The court responds by issuing an order to show cause and sets a time for a witness immunity hearing. See People v Brunner (1973) 32 CA3d 908, 912.
The California Supreme Court has made clear that that such Fifth Amendment privilege determinations generally should be made outside the presence of the jury. Frierson, 53 Cal.3d at 743; Ford, 45 Cal.3d at 454; Mincey, 2 Cal.4th at 441.
At the immunity hearing, the witness claiming the privilege has the burden of showing that a question may be incriminating. Cal. Evid. Code §§402, 404; People v Campbell (1982) 137 Cal. App. 3d 867, 877. If the claimant presents such evidence, the judge must sustain the claim of privilege unless it clearly appears that the proffered evidence “cannot possibly have a tendency to incriminate the person claiming the privilege.” Evid. Code § 404; Cohen v Super. Ct. (1959) 173 CA2d 61, 70. “[T]he court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order.” Cal. Penal Code § 1324.
By Susan Yu
© 2018 Susan Yu Law Group, APC