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Evaluate the General Level of Fairness of Witness Immunity to the Defense

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A witness who is asked to provide information that could be incriminating in any way can invoke the Fifth Amendment privilege and refuse to answer. Incriminating questions require a witness to give answers that could be used to convict the witness of a crime. A question is incriminating when it calls for an answer that provides either: direct evidence of a crime (for example, “I robbed the bank”) or information that could lead to evidence of a crime (for example, the name of someone who could testify to the fact that the witness robbed the bank)

But even if a witness invokes the Fifth Amendment privilege, a prosecutor can override the privilege by giving the witness immunity from prosecution in exchange for testimony. There are two basic types of immunity from prosecution.

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Because of the inability of defendants to have their witnesses immunized, many witnesses refuse to testify, thereby denying to the court and defendant potentially exculpatory evidence. In response to defense attempts to introduce valuable evidence, two recent cases have set forth different views of the right of a defendant who seeks to have his own witnesses immunized. In Government of Virgin Islands v. Smith , the Third Circuit held that if prosecutorial misconduct were found on remand, a judgment of acquittal would be entered for the defendant unless the government consented to grant statutory use immunity to a defense witness. If immunity were granted, a new trial would be ordered. Alternatively, the judge found that under certain circumstances, the court itself should grant judicial immunity to the witness.6 The Second Circuit, in United States v. Turkish, reached the opposite conclusion, stating that trial judges should "summarily reject claims for defense witness immunity whenever the witness . . . is an actual or potential target of prosecution." The court left open the possibility, however, that under certain strictly prescribed circumstances, the court could intervene on behalf of the defendant.These two conflicting judicial approaches demonstrate the need to analyze whether a defendant has a right to have his witnesses immunized and if he does, what mechanism to use and what guidelines to follow. The major arguments supporting a claim that a defendant has a constitutional right to have his witnesses immunized originate in the sixth amendment compulsory process and fifth amendment due process clauses. While most courts reject the sixth amendment argument,' some courts have been persuaded by the fifth amendment due process analysis, especially if there is a showing of prosecutorial misconduct. Absent prosecutorial misconduct, no court has found that a defendant has a general due process right to have his witnesses immunized, though some courts have indicated that the right may exist in certain instances even in the absence of misconduct. Given a fifth amendment violation, judges disagree as to whether they are empowered to remedy the violation

Because the statute places the immunity power within the prosecutor's discretion, most courts maintain that their intervention on behalf of the defendant would violate the constitutional principle of separation of judicial and executive powers.

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In a 1996 en banc opinion, the U.S. Court of Appeals for the District of Columbia Circuit endorsed a “worthwhile approach” to the issue of defense witness immunity proposed by then-U.S. Attorney Eric Holder. The court, in Carter v. United States, outlined a procedure for instances where a defense witness possesses material, exculpatory and noncumulative evidence, unobtainable from any other source, and will invoke the Fifth Amendment privilege against self-incrimination unless granted use immunity. The U.S. attorney proposed that the government could debrief such a witness, with limited immunity solely for the debriefing (Bahadar, 1983). Following the debriefing, if the U.S. attorney were to have a “reasonable basis” for not granting use immunity, the refusal would not rise to the level of “prosecutorial misconduct.” If, however, the government could provide no justifiable reason for not granting use immunity, then the court could consider whether the government’s conduct would result in a distortion of the fact-finding process. If so, the court could find a denial of due process. In order to make this determination, the court would hold a summary hearing. If, after the hearing, the court were to conclude that the defendant could not receive a fair trial without the testimony of a crucial defense witness and that the government failed to submit to the court a reasonable basis for not affording use immunity to that witness, then the court would be justified in putting a choice of remedy to the government

Thus, “[i]n an appropriate case the trial court may present the prosecution with the choice of either dismissal of the indictment (or some other commensurate remedy) or the grant of use immunity to the crucial defense witness…if the court concludes the prosecutor is distorting the factfinding process in relation to the issue.” The D.C. court of appeals has upheld the validity of this sensible procedure in subsequent cases (Blissett v. Lefevre, 1991).

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In essence, after consideration of the interests of the defendant, the witness, and the government implicated by a request for defense witness immunity, the Comment evaluates existing approaches to this difficult problem and concludes that the wholesale transplantation of prosecution witness use immunity analysis to the defense witness area is a fundamental analytic error. Consequently, this Comment proposes a sequential balancing process to resolve the conflict among the relevant interests.

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Bahadar, 954 F.2d 821, citing United States v, Burns, 684 F2d 1066 (2d Cir. 1982), cert. denied, 459 US 1174 (1983).

United States v. Dolah, 245 F3d 98 (2d Cir. 2001) (abrogated on other grounds by Crawford v. Washington, 541 US 36 (2004)).

Blissett v. Lefevre, 924 F2d 434 (2d Cir.), cert. denied, 502 US 852 (1991).

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