How Witness Immunity Works in Washington DC Criminal Cases

How Witness Immunity Works in Washington DC Criminal Cases

If you’ve ever watched a crime show like Law & Order, you’ve probably heard the term “immunity” thrown around when the police make a deal with a witness to testify. But what does immunity actually mean and how does it work in real criminal cases? Let’s break it down.

First, immunity is when a prosecutor (the government lawyer who brings charges against people accused of crimes) promises not to prosecute a witness for crimes they may have committed in exchange for their testimony. This gives the witness protection from being criminally charged for any involvement they may have had in the crime.

Why Do Prosecutors Offer Immunity?

Prosecutors offer immunity to get evidence and testimony they need to convict someone else of a more serious crime. Let’s say Bob committed a robbery with Joe, but Joe was the ringleader who planned the whole thing. If the prosecutor gives Bob immunity, Bob can testify against Joe about his central role without worrying that he’ll also be charged for the same robbery.

Immunity incentivizes witnesses who were involved in criminal activity to come forward and provide information that can help convict the main players. Prosecutors have to weigh the costs and benefits – if giving immunity to a lower level person can help put away someone way more dangerous, its often worth it.

Types of Immunity

There are two main types of immunity given to witnesses:

• Transactional immunity – The witness gets full immunity from prosecution for any crimes related to their testimony. This is the broadest form of immunity.
• Use immunity – More limited. The witness only gets immunity for the specific statements they make in their testimony. If evidence is found through other means that they committed crimes, they can still be charged.

Because it’s so broad, transactional immunity is less common. Prosecutors will usually try to give the narrowest immunity possible – only use immunity for the specific statements made during testimony.

How Immunity Works in Washington DC

In Washington DC, the process for granting immunity is spelled out in DC Code § 23-411. It gives the U.S. Attorney for DC – the top federal prosecutor in the city – sole power to grant immunity.

The U.S. Attorney can grant immunity with approval from the Criminal Division of the Department of Justice. But for immunity agreements related to crimes of violence, approval of a Superior Court judge is also required.

To get immunity, the witness and prosecutor sign a written agreement spelling out what statements the immunity covers. The witness only gets protection for what’s in the agreement.

Defense lawyers sometimes argue immunity agreements are unfair, since accomplices can get off scot free for testifying. But prosecutors counter that immunity helps convict more dangerous criminals who would otherwise walk free.

How Immunity Affects Witness Credibility

Immunity agreements can be a double-edged sword when it comes to witness credibility.

On one hand, jurors may see the witness got a sweetheart deal and question their motives – are they just saying what the prosecutor wants to protect themselves? This can weaken the witness’s credibility.

But on the other hand, immunity can also bolster credibility – after all, the witness no longer has any skin in the game or reason to lie since they can’t be prosecuted. Presenting an immunized witness as someone who finally came clean can strengthen their testimony.

Ultimately it comes down to the facts of each case and how believable the witness seems when testifying on the stand.

Can Immunized Testimony Lead to Other Evidence?

What if an immunized witness mentions crimes that the immunity agreement doesn’t cover? Can prosecutors use that testimony to then go gather more evidence and charge the witness anyway?

This was answered in the Supreme Court case Kastigar v. United States. The Court said immunized testimony can’t lead prosecutors to any other incriminating evidence against the witness – for other crimes not covered by the immunity agreement.

If a prosecutor wants to prosecute an immunized witness for other crimes mentioned in testimony, they have to prove they gathered all the evidence completely independently without using any of the testimony.

This is a high bar and in practice gives witnesses protection beyond just the four corners of their specific immunity agreement.

Can a Witness Lie and Still Keep Their Immunity?

What if a witness lies or completely makes up their testimony – can they still keep immunity?

If a prosecutor knows the witness lied, they can rip up the immunity agreement and potentially prosecute the witness for perjury or obstruction of justice. Immunity only applies if the witness testifies “truthfully and fully” according to the agreement.

However, recanting or changing one’s story later on doesn’t necessarily prove an initial lie. Witnesses can get nervous and mix up facts on the stand under pressure. So courts are careful about finding intentional lies that invalidate immunity.

The prosecutor has to prove the witness knowingly lied, which isn’t always easy. In close cases, judges often side with leaving immunity in place to avoid a chilling effect on other witnesses thinking about coming forward.

Takeaways

The bottom line is that immunity is a powerful tool prosecutors can use to get evidence by cutting deals with witnesses involved in crimes. Different types of immunity provide varying levels of protection from prosecution.

Immunity agreements can make or break cases depending on how credible juries find immunized witnesses. And courts err on the side of preserving immunity in close calls to encourage cooperation. So in real life, immunity often provides broader protection than just what’s in the four corners of an agreement.

Immunity may seem unfair at times, but it’s a strategy prosecutors rely on to convict dangerous criminals through plea deals or testimony from accomplices. The ends often justify the means in the criminal justice system.