How Immunity Works In Federal Criminal Cases

Immunity is a powerful tool that gives federal prosecutors leverage that can help them win big cases. When a person has information about a crime, they may feel compelled to keep quiet. Sometimes, they are under threat from an outside party, but often, they are simply afraid of prosecution for their own involvement in the crime.

If a person is suspected to have knowledge of a crime, or they are suspected to have been involved somehow, the federal courts may choose to offer them a form of immunity in exchange for providing the court with their information.

A variety of situations can lead the government to offer immunity:

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Legal Scenario: What Would You Do?

Scenario

You received a letter from the U.S. Attorney's Office offering you use immunity in exchange for your testimony before a federal grand jury investigating a drug trafficking ring you were peripherally involved in. You're unsure whether testifying under this immunity agreement truly protects you from being prosecuted for your own role in the conspiracy.

If I testify under a federal immunity agreement, can prosecutors still use my testimony to build a case against me?

Attorney's Answer

Under 18 U.S.C. § 6002, use immunity prevents prosecutors from directly using your compelled testimony or any evidence derived from it against you in a criminal case. However, use immunity is not the same as transactional immunity — prosecutors can still charge you if they obtain evidence against you from independent sources unrelated to your testimony. This is known as the Kastigar standard, established in Kastigar v. United States (1972), which places the burden on the government to prove that all evidence against you was derived independently. Before agreeing to testify, it is critical that your defense attorney carefully reviews the scope of the immunity order and negotiates terms that provide you maximum protection.

This is general information only. Contact us for advice specific to your situation.

• The person was directly involved in a crime, but they have information that could potentially bring down a criminal that the authorities feel is more dangerous to society.
• The person was a witness to a crime and needs immunity to avoid prosecution for withholding evidence or other charges that could result from their indirect involvement.
• The person has already been charged for their involvement in the crime, and rather than full immunity, they are offered a reduced sentence in exchange for a statement.

What Are the Different Types of Immunity in Federal Court?

Not every type of immunity offers blanket safety for the person in question. Some guarantee more safety than others.

Proffer Letter Immunity