FIFTH AMENDMENT RIGHT AGAINSTSELF-INCRIMINATION

 

F. CLINTON BRODEN

Broden & Mickelsen

2600 State

Dallas, Texas 75204

                                                     

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


“No person...shall be compelled in anycriminal case to be a witness against himself....”  U.S.Const. Amend. V

 


I.  TESTIMONIAL PRIVILEGE

 

To invoke this privilege, a person mustshow that the government is seeking (i) to compel him (ii) to give testimony(iii) that would incriminate him.

 

 

            A.Scope

 

1. “Despite its cherished position, the Fifth Amendment addresses only arelatively narrow scope of inquiries.” It only applies to testimony “that will subject its giver to criminal liability.”  Garner v. United States, 96 S.Ct. 1178, 1183 (1976).

 

a. The United States Supreme Court has limited the scope of the FifthAmendment privilege to answers that would support a criminal conviction orwhich would furnish a link in the chain of evidence needed to prosecute thewitness.  See Hoffman v. UnitedStates, 71 S.Ct. 814, 818(1951).

 

b.   The possibility of criminal prosecution based on thetestimony must be “substantial and real, and not merely trifling orimaginary....” United States v. Apfelbaum, 445 U.S. 115, 128 (1980).

 

c. The privilege of a witness against self-incrimination does not extend to facts within his knowledge thedivulgence of which have no rational tendency to connect him with thecommission of a crime.

 

d. The Court presiding over the proceeding in which a Fifth Amendmentprivilege is claimed has a duty to scrutinize a witness invocation of the privilege.  “[T]he witness is not exonerated fromanswering merely because he declares that in doing so he would incriminatehimself-- his say-so does not of itself establish the hazard of incrimination.  It is for the court to say whether hissilence is justified.”  Hoffman,71 S.Ct. at 818.

 

2. Nevertheless, a witness is not required to incriminate himself in orderto assert the privilege.  “Tosustain the privilege, it need only be evident from the implications of thequestion, in the setting in which it is asked, that a responsive answer...or anexplanation of why it cannot be answered might be dangerous because injuriousdisclosure could result.”  Hoffman, 71 S.Ct. at 818.

 

a. “The privilege must be sustained if it is not ‘perfectly clear’ that thewitness's answers ‘cannot possibly’ have a tendency to incriminate.” UnitedStates v. D’Apice, 664F.2d 75, 77 (5th Cir. 1981).

 

b. Moreover, simply because a witness asserts her innocence regarding acrime does not mean that she has no Fifth Amendment privilege with regard toanswering questions about the crime. In Ohio v. Reiner,532 U.S. 17 (2001), a babysitter testified at Reiner’s trial, under a grant oftransactional immunity, that she had nothing to do with a baby’s death.  Reiner contended that the babysitterdid not have a privilege against self-incrimination because she deniedcommitting the crime, therefore, the grant of immunity was improper.  The Supreme Court held that thebabysitter's expression of innocence did not, by itself, eliminate the babysitter'sFifth Amendment privileges.

 

3. A witness in federal court can invoke the privilege if his testimonycould incriminate him in a state court proceeding and vice versa.  Murphy v. Waterfront Commission, 378 U.S. 52 (1964).

 

a. Nevertheless, a witness cannot claim the privilege simply because itmight expose him to prosecution in a foreign country.  United States v. Balsys, 524 U.S. 666 (1998).

 

4. Fear that the government will prosecute a witness for perjury or notoffer the witness a favorable plea agreement if she testifies for anotherdefendant at trial is not sufficient to invoke Fifth Amendment protections.

 

a. In United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998), the defendant, Garbriel Vavages,wanted to call Rose Manuel as an alibi witness.  However, Manuel, was awaiting sentencing in an unrelatedcase and had entered into a plea agreement with the government.  Manuel was concerned that thegovernment would prosecute her for perjury and/or withdraw from the pleaagreement if she testified for Vavages. The District Court allowed Manuel to invoke the Fifth Amendment andrefuse to testify based upon these concerns.  The United States Court of Appeals for the Ninth Circuitreversed Vavages’ conviction:

 

Manuels’ only stated basis for her blanketinvocation of the Fifth Amendment privilege was her belief that her alibitestimony, even if truthful, would subject her to a perjury prosecution.  The district court accepted this basesfor invoking the Fifth Amendment and ruled that Manuel ‘ha[d] every right tonot testify.  The district courtwas mistaken.  The government citesno cases for the proposition that fear of a perjury prosecution as a result oftruthful testimony is a sufficient basis for invoking the Fifth Amendmentprivilege.  And even if Manuel’salibi testimony was false, the fear of a legitimate perjury prosecution stillwould not support her invocation of the privilege:

 

“A witness may not claim the privilege ofthe [F]ifth [A]mendment out of fear that he will be prosecuted for perjury forwhat he is about to say.  Theshield against self-incrimination in such a situation is to testify truthfully,not to refuse to testify on the basis that the witness may be prosecuted for alie not yet told.”

 

Id., quoting, United States v. Whittington, 783 F.2d 1210, 1218 (5th Cir. 1986).

 

5. A claim of privilege asserted in connection with a civil proceeding can,as an evidentiary matter, be used against the witness in both federal andstate courts.  Baxter v.Palmigiano, 425 U.S. 308,318 (1976); Tex. Dep't of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995).

 

1. Nevertheless, a claim of privilege cannot be used against a person in aregulatory proceeding.  Spevackv. Klein, 385 U.S. 511(1967) (Privilege can’t be used against lawyer in a disbarment proceedingbecause it would have the effect of making the exercise of the privilege “toocostly.”)

 

 

            B.Non-Testimonial Evidence

 

1. The Fifth Amendment does not apply to requiring a person to:

 

a. Provide physical samples such as hair or blood.  Pennsylvania v. Muniz, 496 U.S. 582 (1990);

 

b. Submit to fingerprinting, photographing, or measurements, to write orspeak for identification, to appear in court, to stand, to assume a stance, towalk or to make a particular gesture. Schmerber v. California, 384 U.S. 757 (1966); or

 

c. Provide voice exemplars. United States v. Dionisio, 410 U.S. 1 (1973).

 

2. The privilege only prohibits extorting information from someone byforcing him “to disclose the contents of his own mind.”  Curci v. United States, 354 U.S. 118, 128 (1967).

 

3. A defendant can claim a Fifth Amendment right not to answer questions ina psychiatric evaluation.  Estelllv. Smith, 451 U.S. 454(1981).  Nevertheless, the TexasCourt of Criminal Appeals has employed a self-described “legal fiction” to finda “limited waiver” in cases in which a defendant intends to introduce his ownpsychiatric testimony.  Lagronev. State, 942 S.W.2d 602,611-12 (Tex. Crim. App. 1997).  Seealso, Brewer v.Quaterman, 475, F.3d 253,256-57 (5th Cir. 2006) (Agreeing with the reasoning in Lagrone).

 

4. Dictating information for a witness to write down in order to learn howthe witness spells certain words constitutes “testimony” and, therefore, isprotected by the Fifth Amendment.  UnitedStates v. Campbell, 732F.2d 1017 (1st Cir. 1984); United States v. Matos, 990 F.Supp. 141 (E.D.N.Y. 1998).

 

 

            C.Procedure at Trial

 

1. If a witness intends to assert a Fifth Amendment privilege in order notto testify at trial, the trial judge must make an inquiry (this can be done incamera) into thelegitimacy and scope of the witness' assertion of his privilege. A blanketassertion of the privilege without inquiry by the court, is not acceptable.Therefore, in cases in which a trial judge excuses a witness without inquiryabout the validity or scope of the witness' privilege claim, the case will bereversed for further findings.  UnitedStates v. Goodwin, 625F.2d 693, 701 (5th Cir. 1980).

 

2. The right to compulsory process does not afford a defendant, in eitherfederal or state court, the right to require a witness who is going toassert his Fifth Amendment privileges do so in the presence of the jury. UnitedStates v. Griffin, 66F.3d 68 (5th Cir. 1995); Ellis v. State, 683 S.W.2d 379 (1984).

 

a. It appears too that a defendant may object to a prosecution witnessesbeing allowed to take the Fifth before the jury.  United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.  1974) (“[N]either side has the right tobenefit from any inferences the jury may draw simply from the witness'assertion of the privilege either alone or in conjunction with questions thathave been put to him." ).  Seealso Washburn v. State,299 S.W.2d 706 (Tex.Crim.App. 1957)

 

1. Nevertheless, the prosecution may be allowed to call a witness beforethe jury knowing the witness will take the Fifth when "the prosecutor'scase would be seriously prejudiced by a failure to offer him as awitness." United States v. Kilpatrick, 477 F.2d 357 (6th Cir. 1973).

 

2. Likewise, the prosecution may be allowed to call a witness before thejury knowing the witness will take the Fifth when the witnesses has been givenimmunity but still refuses to testify. See Coffey v. State, 796 S.W.2d 175 (Tex. Crim. App. 1990).

 

 

            D.Waiver

 

1. Generally, “[a] witness who fails to invoke the Fifth Amendment againstquestions as to which he could have claimed it is deemed to have waived hisprivilege respecting all questions on the same subject matter.” United Statesv. O’Henry’s Film Works, Inc., 598 F.2d. 313 (2d Cir. 1979), citing, Rogers v. United States, 340 U.S. 367 (1951).

 

2. “An individual under compulsion to make disclosures as a witness whorevealed information instead of claiming the privilege [loses] the benefit ofthe privilege.” Garner, 96S.Ct. at 1182.  In other words, thewitness must “make a timely assertion of the privilege” or he loses theprivilege. Id. at1183.  Moreover, the Supreme Courthas “made clear that an individual may lose the benefit of the privilege without a knowing and intelligent waiver.”  Id. at 1182, n.9.

 

3. In sum, if a witness answers a question on a particular topic there isan implicit waiver on other questions related to that topic unless that answersto the additional question on the issue would “further incriminate” thewitness.  Rogers v. UnitedStates, 340 U.S. 367(1951).

 

a. Therefore, a witness must claim the privilege as to each questionasked.  For example, if a witnessclaims the privilege in the grand jury in response to one question, the grandjury can continue to question him about the same or related topics and if hedoes not assert the privilege in response to the additional questions, theprivilege is waived.  Quinn v.United States, 349 U.S.155 (1955).  But see, Hicks v. State, 860 S.W.2d 419, 430 (Tex. Crim. App.1993) (Suggesting that continued questioning “on the merits” of a grand jurywitness once he exercised his privilege against self incrimination, itselfconstitutes a violation of the privilege.).

 

b. Nevertheless, Rogers has been limited. For example, courts have held that when a witness’ initial admissionrelates to only one element of an offense, he does not waive the privilegeagainst answering questions related to other elements of the offense.  See., e.g. Hashagen v. United States, 283 F.2d 345 (9th Cir. 1960); UnitedStates v. Courtnery, 236F.2d 921 (2d Cir. 1956).

 

4. In any event, a waiver of the privilege is not “to be lightly inferred,”and courts should indulge every reasonable presumption against finding awaiver.  Emspak v. United States, 349 U.S. 190, 196 (1955).

 

5.  Waiver of the privilege is limited to proceeding in whichthe waiver was explicitly or implicitly made.  See, e.g., In re Morganroth, 718 F.2d 161 (6th Cir. 1983); Matterof Berry, 680 F.2d705 (10th Cir. 1982); Tucker v. Francis, 723 F.2d 1504 (11th Cir. 1994).

 

a.  For example, if a witness waives the privilege before agrand jury, he can still invoke the privilege at a trial on the merits.  See., e.g., United States v.Licavoli, 604 F.2d613 (9th Cir. 1979); United States v. Housand, 550 F.2d 818 (2d Cir. 1997).

 

b.  Likewise, if a witness waives the privilege in a civiltrial, he can still invoke the privilege in a criminal trial.

 

6.  Adefendant may remain silent at his sentencing hearing and his silence cannot beused against him even though he pleaded guilty and engaged in a plea colloquyadmitting to the offense because the sentencing hearing is considered aseparate proceeding.  Mitchallv. United States, 526 U.S.314 (1999).

 

7.  As set forth by the Supreme Court in Garrity v. NewJersey, 385 U.S.493 (1967), if a government employee (such as a police officer) is required togive a statement in order to preserve his job, that statement cannot then beused against the employee to support a criminal conviction.  This is known as the Garrity Doctrine.

 

           

            E.  Other Issues

 

1. “[I]t is clear that a witness who is unavailable because he has invokedthe Fifth Amendment privilege against self-incrimination is unavailable underthe terms of [ Fed. R. Evid.] 804(a)(1).” United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978).  See also, United States v. Young Bros., Inc. 728 F2d. 682, 690 (5th Cir. 1984); UnitedStates v. Williams, 927F.2d 95, 98-99 (2d. Cir. 1991).

 

a. Thus, to the extent a witness has a sustainable Fifth AmendmentPrivilege, if he has previously given a statement on the subject that isagainst his “pecuniary or proprietary interest” or subjects him “to civil orcriminal liability” the statement is admissible at trial under Fed. R. Evid.804(b)(3).  Likewise, if it wasgiven under oath, it is admissible under Fed. R. Evid. 804(b)(1).  Of course, if the statement was made bythe defendant, it is likely admissible under Fed. R. Evid. 801(d)(2)(A) in anyevent.

 

2. As a practical matter, a grand jury mayproperly subpoena a subject or a target of the investigation and question thetarget about his or her involvement in the crime under investigation.  See United States v. Wong, 431 U.S. 174, 179 n.8 (1977); UnitedStates v. Washington, 431U.S. 181, 190 n.6 (1977); United States v. Mandujano, 425 U.S. 564, 573-75 and 584 n.9 (1976);United States v. Dionisio, 410 U.S. 1, 10 n.8 (1973).

 

a.  Nevertheless,with regard to federal grand juries, the United States Attorneys’ Manualprovides that, if a target and his attorney state in writing, signed by both,that the target will assert his Fifth Amendment rights before the grand jury,“the witness ordinarily should be excused” although the grand jury and/or the UnitedStates Attorney may, nevertheless, insist upon the appearance. See USAO Manual at § 9-11.154

 

3. A prosecutor may not intimidate a witness into asserting his FifthAmendment rights in order to interfere with a criminal defendant’s right tocompulsory process.  Brown v.Cain, 104 F.3d 744, 749(5th Cir. 1997); United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998).

 

4. A criminal defendant should seek a stay of any related civil lawsuit ifhe may be called upon to assert his Fifth Amendment rights in that civillawsuit.  See, e.g., SEC v.First Financial Group, Inc. 659 F.2d 660, 667-69 (5th Cir. 1981)

 

 


II. PRODUCTION OF DOCUMENTS

 

Recently the United States Supreme Court,in United States v. Hubbell, 530 U.S. 27 (2000), discussed at length the “act of production”privilege under the Fifth Amendment which applies when, by producing documentsin compliance with a subpoena, a witness would admit that the documentsexisted, were in his possession or control, or were authentic.  It is not the contents of voluntarilycreated documents that are privileged but the “testimony” inherent in the factthat a witness is compelled to produce the documents.  United States v. Doe, 465 U.S. 605 (1984).  YOU MUST READ AND REREAD Doe and Hubbell IF YOU REPRESENT A WITNESS WHO ISCOMPELLED TO PRODUCE DOCUMENTS TO A GRAND JURY OR AT TRIAL.

 

Also, as explained in Part III(c)(4) ofthis paper, any immunity given in connection with the act of production ofdocuments covers “derivative use” of the documents which may then include making use of the contentsof the documents even though the contents of the documents are not otherwiseprivileged.

 

Finally, even in cases in which an act ofproduction privilege does not exist, it should be noted that in Hubbell, Justice Thomas, joined by JusticeScalia, suggested that the Fifth Amendment should cover not only situationswhere the compelled production of documents has a testimonial component butshould also protect a person from producing incriminating documents regardlessof whether the compelled production has a testimonial component.  Hubbell, 530 U.S. at 49 (Thomas, J., concurring)(“I would be willing to reconsider the scope and meaning of theSelf-Incrimination Clause.”).  Therefore,even if the act of production privilege does not apply, you may seek to useThomas’ concurrence to resist production of documents.

 

 

            A.Who Can Claim the Act of Production Privilege?

 

1. The act of production privilege applies to sole  proprietorships.  United States v. Doe, 465 U.S. 605 (1984).  See also Braswell v. United States, 487 U.S. 99 (1988) (“If petitioner hadconducted his business as a sole proprietorship,United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d552, would require that he be provided the opportunity to show that his act ofproduction would entail testimonial self-incrimination as to admissions thatthe records existed, were in his possession, and were authentic.”).

 

2. The act of production privilege does not apply to “collective entities.”  Braswell v. United States, 487 U.S. 99 (1988).

 

a. However, it does apply if the government seeks to prosecute anindividual records custodian who produces the records.  Braswell, 487 U.S. 99, 118 (1988) (“For example,in a criminal prosecution against the custodian, the Government may notintroduce into evidence before the jury the fact that the subpoena was servedupon and the corporation's documents were delivered by one particularindividual, the custodian. The Government has the right, however, to use thecorporation's act of production against the custodian. The Government may offertestimony -- for example, from the process server who delivered the subpoenaand from the individual who received the records -- establishing that thecorporation produced the records subpoenaed.”)

 

3. There is as to question whether the act of production privilege appliesto closed partnerships.  Forexample, in Bellis v. United States, 417 U.S. 85 (1974), the United States Supreme Court held thatthe privilege did not apply to the production of documents of a lawpartnership.  Nevertheless, theSupreme Court noted in Bellis that it was not addressing the question of “a small familypartnership” or a case where “there was some other pre-existing relationship ofconfidentiality among the partners.” On that basis, at least one court has held that the husband in ahusband/wife partnership could assert a Fifth Amendment privilege with regard to a subpoenaserved on the partnership.  Inre Grand Jury Subpoena Duces Tecum, 605 F. Supp. 174 (N.D.N.Y. 1985).

 

 

            B.What Does the Act of Production Privilege Cover?

 

1. The act of producing evidence is protected under the Fifth Amendment ifthe production of documents (i) admits the existence of the thing sought bysubpoena; (ii) admits that the witness has possession or control of the thingsought by the subpoena; or (iii) authenticates the thing produced by admitting that thewitness believes that the thing is covered by the subpoena.

 

a. There is a “foregone conclusion” exception to the act of productionprivilege when it is already known that the documents requested exist and thesedocuments are requested with particularity.  In that case, the witness is not “telling” anything that isnot already known.

 

1. The government must demonstrate that it knows of the existence andlocation of subpoenaed documents for this exception to the act of productionprivilege to exist.  For example,in          Inre Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87 (2d Cir. 1993) the “foregoneconclusion” exception applied to documents that the witness had previouslyproduced to the SEC.

 

2. It is not enough to show that it is a “foregone conclusion” thatbusinesses in general keep particular types of records or that a specific typeof business  keep particular typesof records.  The government mustestablish what it knows about the particular entity’s record-keepingpractices.”  Hubbell, 530 U.S. at 44-45; United States v.Fox, 721 F.2d 31 (2d Cir.1983).

 

2. The act of production privilege also covers the absence ofdocuments.  For example, if theabsence of  records will establishfraud on the part of the witness, the act of production privilege applies.  See Steinbrecher v. Commissioner, 712 F.2d 195, 199 (5th Cir. 1983); Sinclairv. Savings & Loan Comm’r, 696 S.W.2d 142, 154 (Tex. Ct. App.--Dallas 1985)

 

3. The act of production privilege does not apply to regulatory typerecords that are required to be kept by law or items analogous to a “requiredrecord.”  Baltimore City Dept.of Social Services v. Bouknight, 493 U.S. 549 (1990).

 

a. This exception, however has limits and will not extend to regulationsthat have no statutory purpose independent of a desire to “ferret out illegalactivities.”  See,e.g., BionicAuto Parts and Sales, Inc. v. Fahner, 721 F.2d 1072 (7th Cir. 1983) (Required records or trialexception did not apply to auto dealers required to keep a report of alteredserial numbers); Marchetti v. United States, 390 U.S. 39 (1968) (Required recordsexception did not apply to persons required to keep records of gamblingactivities when gambling was illegal).
III. CONTEMPT/ IMMUNITY

 

 

            A.Contempt

 

1. If a prosecutor believes that a witness impermissibly invoked the FifthAmendment before a grand jury, he can request the judge overseeing the grandjury or trial to require the witness answer the question.  If the witness refuses, he can be heldin contempt.

 

2. Likewise, if a witness has been given statutory immunity as described below and herefuses to testify, he can be held in contempt.

 

a. A witness cannot be held in contempt simply because he has been offered informalimmunity by theprosecution.  Taylor v.Singletary, 148 F.3d1276, 1283 n.7 (11th Cir. 1998).

 

3. While the contempt can be civil or criminal contempt, the witness,especially in the case of a grand jury witness, will generally be held in civilcontempt in order to compel the testimony.  In civil contempt, the person in contempt ‘holds the keys tohis own cell.’  Civil contemptshould be considered by the courts before resorting to criminal contempt.  United States v. DiMauro, 441 F.2d 428 (8th Cir. 1971).

 

4. A contempt judgment is appealable. In re Ryan, 538 F.2d 435 (D.C. Cir. 1976).

 

5. A witness receiving a subpoena can also file a motion to quash thesubpoena.  If the subpoena isquashed, the government can file an appeal from the decision quashing thesubpoena.  Nevertheless, if themotion is denied, the witness must be held in contempt before he can appeal.  United States v. Ryan, 402 U.S. 530, 532-33 (1971).

 

a. A person filing a motion to quash a subpoena on a third-party can takean immediate appeal of a denial of a motion to quash since a third party cannotbe expected to risk a contempt citation to protect another person’s interests.

 

 

            B.  Perjury

 

1. If a witness is given immunity and then testifies falsely, he can beprosecuted for perjury and the immunized testimony used against him in theperjury prosecution.  UnitedStates v. Apfelbaum, 445U.S. 115 (1980).  

 

 

            C.  Federal Court Immunity

 

1. There are three types of immunity

 

a. Transaction Immunity is the most broad- under which the person cannot beprosecuted for the transaction being investigated.

 

b. Use and Derivative Use Immunity- under which nothing the person says canbe used against him and no evidence derived as a result of his statements canbe used against him.

 

c. Use immunity which is the most narrow- under which a person is onlyprotected against having his own statements used against him.

 

2. Immunity can be granted informally by a prosecutor either in writing ororally.  Such immunity is oftenreferred to as “informal immunity,” “pocket immunity,” or “letterimmunity.”  It is binding on thegovernment and is as broad or narrow as provided for by the terms of theagreement.  United States v.Turner, 936 F.2d 221 (6thCir. 1991); United States v. Quam, 367 F.3d 1006, 1008 n.2 (8th Cir. 2004).

 

a. Because informal immunity does not have Fifth Amendment limitations, itcan cover transactional immunity, use and derivative use immunity or only useimmunity depending on the agreement.

 

1. Such agreements are contracts and all ambiguities will be resolvedagainst the government.  UnitedState v. Dudden, 65 F.3d1461 (9th Cir. 1995).

 

b. Keep in mind, however, that informal immunity offered by a prosecutor inone district may not cover other districts.  United States v. Turner, 936 F.2d 221 (6th Cir. 1991).

 

3. Statutory immunity for federal court and federal grand jury proceedingsis provided for under 18 U.S.C. §§ 6002 and 6003.

 

a. 18 U.S.C. § 6003 provides that the United States Attorney may, “with theapproval of the Attorney General, the Deputy Attorney General, the AssociateAttorney General, or any designated Assistant Attorney General or DeputyAttorney General” request a witness be provided immunity.

 

1. The request must be signed by the United States Attorney for thedistrict or by an Assistant United States Attorney designated to act onimmunity issues for theUnited States Attorney during her absence or unavailability.  In re Grand Jury Proceedings, 882 F.Supp. 1165 (D.Mass. 1995).

 

b. 18 U.S.C. § 6003 also requires the United States Attorney or hisdesignee to believe (1) that “the testimony or other information from suchindividual [is] necessary to the public interest and (2) that the individualhas refused or is likely to refuse to testify or provide information byinvoking the Fifth Amendment.

 

1. In evaluating whether immunity is in the public’s interest, the UnitedStates Attorneys’ Manual suggests that the following factors be considered: (i)the importance of the investigation or prosecution to effective enforcement ofthe criminal laws; (ii) the value of the person's testimony or information tothe investigation or prosecution; (iii) the likelihood of prompt and fullcompliance with a compulsion order, and the effectiveness of availablesanctions if there is no such compliance; (iv) the person's relativeculpability in connection with the offense or offenses being investigated orprosecuted, and his or her criminal history; (v) the possibility ofsuccessfully prosecuting the person prior to compelling his or her testimony;and (vi) the likelihood of adverse collateral consequences to the person if heor she testifies under a compulsion order.  See U.S.A.O.Manual at § 9.-23.210.

 

2. The United States Attorneys’ Manual  also provides that “absent specific justification, theDepartment will ordinarily avoid seeking to compel the testimony of a witnesswho is a close family relative of the defendant on trial or of the person uponwhose conduct grand jury scrutiny is focusing.”  See U.S.A.O.Manual at § 9.-23.211.

 

3. Finally, United States Attorneys’ Manual  provides that immunity will not be used to compel theproduction of testimony or other information on behalf of a defendant except inextraordinary circumstances.”  SeeU.S.A.O. Manual at §9.-23.214.

 

4. The Fifth Circuit had held that a defendant may not complain of afailure of the Department of Justice to follow it own guidelines in seekingimmunity orders.  In re Tierney, 465 F.2d 806, 813 (5th Cir. 1992)

 

c. If an immunity request is made by the government, as provided for understatute, it is then submitted to the overseeing Court (usually ex parte) and the Court “shall” grant the witnessimmunity.  See. e.g., In reKilgo, 484 F.2d 115, 1219(4th Cir. 1973) (Court has no discretion to question whether testimony isneeded in the “public interest.”).

 

d.  Statutory immunity confers both use and derivative useimmunity.  It does not provide transactional immunity.

 

1. If a defendant believes that the government is relying upon evidencederived from immunized testimony, he has a right to a Kastigar hearing.  Kastigar, 406 U.S. 441, 460 (1972) (“‘Once a defendant demonstrates thathe has testified, under a state grant of immunity, to matters related to thefederal prosecution, the federal authorities have the burden of showing thattheir evidence is not tainted by establishing that they had an independent,legitimate source for the disputed evidence.’  This burden of proof, which we reaffirm as appropriate, isnot limited to a negation of taint; rather, it imposes on the prosecution theaffirmative duty to prove that the evidence it proposes to use is derived froma legitimate source wholly independent of the compelled testimony.  This is very substantial protection.”)

 

2.   For example, if a murder suspect who has been grantedimmunity is called before a grand jury and asked whether he committed a murderand where the murder weapon is, his testimony may not be used against him in acriminal trial. In addition, the government may not use his testimony toretrieve the weapon for use against the witness at trial. Even if thegovernment introduced the weapon without indicating that it learned of itslocation from the defendant's immunized grand jury testimony, only usingfingerprints or DNA testing to link the weapon to the defendant, the weaponwould still be barred because it was "directly or indirectly derivedfrom" compelled testimony. If the police simply happened upon the weaponthrough an ongoing investigation, however, the weapon could be used against thewitness because it was "derived from a legitimate source whollyindependent of the compelled testimony.” United States v. Ponds, 454 F.3d 313, 321 (D.C. Cir. 2006)

 

e. Statutory immunity binds all federal and state prosecutingauthorities.  Murphy v.Waterfront Commission,378 U.S. 52 (1964).

 

f. Separate immunity orders are needed for grand jury testimony and  trial testimony.

 

4. The government can also give immunity for the act of production ofdocuments.   United Statesv. Doe, 465 U.S.605 (1984).  See also, USAO Manual at § 9-23.250.  The immunity also protects a personagainst derivative use of the “testimonial aspects” of producing thedocuments.  Hubbell, 530 U.S. 277.

 

a. The best discussion of Hubbell’s scope regarding “derivative use” of documents produced under anact of production immunity is contained in the opinion of the United StatesCourt of Appeals for the District of Columbia in United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006).  First, Ponds makes clear that the contents of thedocuments are not ordinarily privileged and, therefore, the contents of thedocuments are irrelevant for purposes of determining whether an act ofproduction privilege applies:

 

It is true that in Hubbell the SupremeCourt drew a distinction between protected testimony as to the existence,location, and authenticity of documents inherent in the act of production andthe unprotected contents of the documents themselves.  See  Hubbell, 530 U.S. at 37.  This distinction, however, is onlyrelevant in the context of determining whether an act of production implicatesthe Fifth Amendment. In that context, the contents of the documents are irrelevantfor constitutional purposes because their preparation was not"compelled." See Fisher, 425 U.S. at 409-10; Doe, 465 U.S. at 610-11. Therefore, to determine whether anact of production implicates the Fifth Amendment, the court looks only to thecommunicative aspects of the act of production itself and to whether thosetacit averments as to the existence and location of the documents add anythingsignificant "to the sum total of the Government's information."  Fisher, 425 U.S. at 411.

 

Id. at 323.

 

Nevertheless, Ponds next makes clear that once it isdetermined that the production was covered, under an act of productionprivilege, any immunity covers the use of the contents of the documents under the “derivativeuse” prong to the immunity.  Id. (“When the government does not havereasonably particular knowledge of the existence or location of a document, andthe existence or location of the document is communicated through immunizedtestimony, the contents of the document are derived from that immunizedtestimony, and therefore are off-limits to the government.”).  The Ponds court noted:

 

With act-of-production immunity, the keyquestion is whether, despite the compelled testimony implicit in theproduction, the government remains free to use the contents of the(non-testimonial) produced documents. In Hubbell, the Supreme Court rejected the"manna from heaven" theory[1] by holding the use of the contents ofproduced documents to be a barred derivative use of the compelled testimonialact of production. The Court did so by stating that it "cannot accept theGovernment's submission that [Hubbell's] immunity did not preclude itsderivative use of the produced documents" as it "was only through [Hubbell]'struthful reply to the subpoena that the Government received the incriminatingdocuments of which it made 'substantial use . . . in the investigation that ledto the indictment.'"  Hubbell, 530 US. at 42-43 (emphasis added). Incontext, these statements indicate that the Supreme Court understands thecontents of the documents to be off-limits because they are a derivative use ofthe compelled testimony regarding the existence, location, and possession ofthe documents.

 

Id. at 321. 

 

The Ponds Court recognized the Catch-22 that theact of production privilege places the prosecution in when it cannot make “derivativeuse” of the documents produced by using their contents. Id. at 322 (“Taken together, the bar on theuse of information derived from a testimonial act of production by a witnesswith § 6002 immunity and the breadth of that bar create real risks forprosecutors planning on prosecuting those whom they subpoena.”).

 

5. Federal judges are powerless to offer immunity on their own withoutagreement by the government. ­See. e.g., United States v. Serrano, 406 F.3d 1208 (10th Cir. 2005).

 

6. Likewise, the government cannot be forced to offer defense witnessesimmunity.  ­See. e.g. United States v. Beasley, 550 F.2d 261 (5th Cir. 1977)

 

D. State Court Immunity

 

 1. A state’s grant of immunity binds federalauthorities.  Murphy v.Waterfront Commission,378 U.S. 52 (1964).

 

2. Except as noted below with regard to the crime of engaging in organizedcriminal activity, “a procedure for the granting of immunity has not beenexpressly provided by the Legislature of this State.”  Graham v. State, 994 S.W.2d  651, 655(Tex. Crim. App.) 1999.

 

3. The prosecutor can offer “contractual immunity” against use andderivative use of information provided by a witness without intervention of thecourt and this immunity also applies to authorities in counties other than theone offering the “contractual immunity”. Id. 

 

4.   Nevertheless, transactional immunity requires approvalby the court.  Id 

 

5.  Thegeneral rule is that a trial court has no power to grant immunity withoutapproval by the state.  Fuentesv. State, 622 S.W.2d 19(Tex. App.--Houst. [1st] 1983).

 

a. Nevertheless, it appears (although there are no cases on point) that, instate court prosecutions for engaging in organized criminal activity, either side may request that the judge give useand derivative use immunity to a party to the offense in order to compel theperson to give evidence or testify about the offense. See Tex. PenalCode § 71.04.  Thus, arguably thedefense can request immunity for another party to the alleged offense in orderto compel the person to provide evidence to the defense or to testify for thedefense.

 

6. The initial burden is on a defendant to show the existence of animmunity agreement by a preponderance of the evidence. The burden then shiftsto the state to show, beyond a reasonable doubt, why the immunity agreement isinvalid or why prosecution should be allowed despite the agreement.  Zani v. State, 701 S.W.2d 249 (Tex. Crim. App. 1985).

 

                                                                                                   August2007

 



[1]           The“mantra from heaven” theory states that "the act of production shields thewitness from the use of any information (resulting from his subpoena response)beyond what the prosecution would receive if the documents appeared in thegrand jury room or in his office unsolicited and unmarked, like manna from heaven."  Id. (citation omitted)