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