The Fifth Amendment of the United States Constitution protects an individual from having to answer incriminating questions about him or herself. In fact, a person often hears the Fifth Amendment rule,“You have the right to remain silent,” while being placed under arrest for an alleged crime. However, an alleged offender and a witness to his or her actions may be asked to answer questions to better the prosecution’s case. If a question is believed to be incriminating, a person can rely on his or her “right to remain silent.” A question may be considered incriminating if it involves discussing direct evidence of a crime or information that may produce direct evidence of a crime. It is important to note, however, that even after someone invokes his or her Fifth Amendment right, a prosecutor may offer that witness, who may even be an accomplice to the crime, the opportunity to exchange a solid testimony for immunity.
What Immunity Means
Immunity is a tool often relied upon by prosecutors. If it is granted, it means the prosecutor essentially has agreed not to prosecute the crime that the witness might have been a part of in exchange for specific evidence. Typically it is offered to witnesses for all types of crimes, even kidnapping. However, prosecuting attorneys do not give immunity to someone believed to have committed a serious crime. A prosecutor will use it, though, for a person who allegedly committed a minor crime to get that individual to testify against another individual who may have committed a more serious crime.
Two Types of Immunity
There are two basic types from prosecution. The first is “transactional” which offers complete protection from future prosecution. Transactional is also referred to as “blanket” or “total”. It only offers protection from prosecution from the matter mentioned in the testimony. It does not offer immunity from criminal activities unrelated to the testimony. For example, an individual involved in a robbery is granted immunity in exchange for his or her testimony about the robbery, which could lead to the prosecution of the person who orchestrated the crime. However, if it later is uncovered, not through the testimony, that the individual who was granted immunity has been buying and selling illegal drugs then he or she could be charged and convicted for that separate criminal activity.
The second type of immunity is known as “use and derivative use” immunity, and it is the most common type. Use and derivative use immunity also provides protection from being part of the criminal prosecution. However, if a witness, while testifying, indicates that he or she committed a crime and the prosecution obtains evidence of that crime, the witness could be prosecuted for that crime. When transactional immunity has been given, a witness who indicates his or her own criminal activity while testifying can’t be investigated and charged for that crime, in comparison.
If you’ve been asked to give a testimony or believe you should testify with the authorities concerning a crime, consult an experienced criminal defense attorney first. Our office can explain immunity and work for you, protecting your rights, during this process.