Id. However, he declined to accord the defendants the benefit of this "probable" Fifth Amendment right to defense witness immunity for two reasons. First, he ruled that the defendants' motion was untimely, since it should properly have been made at the beginning of the trial. Second, he concluded that defense witness immunity would be available only to secure testimony that was material and exculpatory and that the defendants had not shown that any of the witnesses for whom they sought immunity would give material, exculpatory testimony." The only federal appellate decisions that have ruled in favor of defense witness immunity are stated to appear to be the Third Circuit decisions in Morrison and Smith and in Morrison it is stated that a "divided panel of the Third Circuit reversed a conviction on the ground that prosecutorial misconduct had caused a defense witness to withhold testimony out of fear of self-incrimination. As a remedy for the misconduct, the Court ordered that upon a retrial, the Government face the choice of either granting the witness use immunity or having the defendant acquitted."

The case of Smith involved a juvenile defendant who sought the use of immunity for a juvenile defense witness and the office of the Virgin Islands Attorney General who had exclusive jurisdiction to prosecute both the defendant and the witness, was agreeable to use immunity for the witness. However, this local prosecuting office, as a matter of "prosecutorial courtesy," 615 F.2d at 967, conditioned its approval upon the consent of the United States Attorney, who inexplicably declined to consent. In a thoughtful opinion Judge Garth reversed the conviction and remanded for determination of whether use immunity should have been conferred under standards explicated in the Court's decision."

These standards are stated to "rest on two different concepts:

(1) Judge Garth considered the power of a court to order the prosecutor to grant statutory use immunity pursuant to 18 U.S.C. § 6002. Such "statutory" immunity was held to be available for a defense witness with relevant testimony, 615 F.2d at 969 n.7, when the defendant could show that the prosecutor's decision not to confer immunity was made "with the deliberate intention of distorting the judicial fact finding process," id. At 966, a standard the Third Circuit had previously articulated in United States v. Herman, supra, 589 F.2d at 1204; and (2), Judge Garth considered what he called "judicial" immunity, the power of a court, unaided by statute, to order that a witness's testimony cannot be used against him. Again applying a standard earlier announced in United States v. Herman, supra, Judge Garth held that judicial immunity, i. e., court-ordered use immunity, was available for a witness "capable of providing clearly exculpatory evidence" when the Government can present no "strong countervailing interest." 615 F.2d at 970."

While the cases of Morrison and Smith sharply contrast the uniform holds of other federal appellate decisions rejecting defense witness immunity "...some of these decisions have been careful to deny the claim only with respect to the precise facts presented, e. g., United States v. Wright, supra; United States v. Alessio, supra. Furthermore, two of our decisions have explicitly left open the possibility that defense witness immunity might be required if grants of use immunity to prosecution witnesses resulted in an "unfair advantage." United States v. Gleason, supra, 616 F.2d at 28; United States v. Lang, supra, 589 F.2d at 96-97. In light of this state of the case law, further consideration of the constitutional bases for defense witness immunity is warranted. Resort is usually made to the Sixth and Fifth Amendments."

It is held in this case that the Sixth Amendment does not support a claim for defense witness immunity as the Sixth Amendment's Compulsory Process Clause "gives the defendant the right to bring his witness to court have the witness's non-privileged testimony heard, but does nor carry with it the additional right to displace a proper claim of privilege, including the privilege against self-incrimination."

While the prosecutor may not prevent or discourage a defense witness from testifying, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); United States v. Morrison, supra, it is difficult to see how the Sixth Amendment of its own force places upon either the prosecutor or the court any affirmative obligation to secure testimony from a defense witness by replacing the protection of the self-incrimination privilege with a grant of use immunity."

There is stated to be a more plausible basis for defense witness immunity "in the more general and perhaps developing requirement of basic fairness protected by the Fifth Amendment's Due Process Clause. The appeal to constitutionally protected fairness proceeds from two basic arguments. First, as this...

Secondly, to the extent that a trial is viewed as a search for the truth, denial of defense witness immunity may in some circumstances unfairly
PART III

The work of Weingarten and Heberlig (2006) entitled: "The Defense Witness Immunity Doctrine: The Time Has Come to Give it Strength to Address Prosecutorial Overreaching"

published in the American Criminal Law Review states that a trend in federal white collar criminal prosecutions that is disturbing "is the government's manipulation of immunity grants and charging decisions to make exculpatory witnesses unavailable to the defendant at trial. In the typical corporate fraud case, after a comprehensive investigation in which the government interviews many corporate executives, the government builds its case against the Chief Executive Officer or other senior corporate executives who are the ultimate targets of the investigation on the testimony of a witness it has immunized through please agreements, informal immunity or non-prosecution agreements, or statutory immunity orders." (Weingarten and Heberlig, 2006)

Weingarten and Heberlig write that in the case of executives who fail to implicate the defending or who deny having participated in any criminal scheme or activities or who "otherwise contradict the government's theory of prosecution, the government refuses to grant immunity or formally decline prosecution and instead designates them unindicted 'co-conspirators or potential targets of prosecution." (Weingarten and Heberlig, 2006)

The threat of prosecution in the future is stated to inevitably leads to the "potential exculpatory witnesses to invoke their Fifth Amendment right against self-incrimination when subpoenaed by the defendant to testify at trial." (Weingarten and Heberlig, 2006) Current laws crate difficulty for a defendant to obtain immunity for the "potential exculpatory defense witnesses or any other meaningful relief." (Weingarten and Heberlig, 2006)

Therefore, it is stated by Weingarten and Heberlig that "through the guise of prosecutorial discretion in immunity and charging decisions, the government is able to prevent the defendant from introducing exculpatory evidence." (Weingarten and Heberlig, 2006) Weingarten and Heberlig's work "...addresses the limited tools available to a defense attorney to counter the unfairness of prosecutorial manipulation of immunity and charging decisions, including

(1) seeking an order requiring the government to grant immunity to defense witnesses or face dismissal of the indictment,

(2) moving, pursuant to Federal Rule of Evidence 806,2 to impeach co-conspirator statements with evidence of prior inconsistent statements, and (3) requesting a "missing witness" jury instruction that would permit the jury to infer that the testimony of the non-immunized "co-conspirators" would have been unfavorable to the government." (Weingarten and Heberlig, 2006)

The current state of the law makes it very difficult for a defendant to present an effective defense when the government "uses its charging and immunity decisions to render potential defense witnesses unavailable. Now that prosecutors are increasingly pushing the boundaries of the applicable standards, it is time for courts to re-examine the defense witness immunity doctrine to ensure defendants are not denied a fair trial by the government manipulating the system to ensure that exculpatory defense witnesses invoke the Fifth Amendment and become "unavailable" to testify for the defendant at trial. Defendants have traditionally faced significant obstacles in obtaining defense witness immunity." (Weingarten and Heberlig, 2006)

Weingarten and Heberlig state of the due process clause that it does not make a requirement of defense witness immunity to be entered as an order of the court "whenever it seems fair to grant it." (Weingarten and Heberlig, 2006) The government may not be required to confer immunity for the defense's benefit since immunity is "pre-eminently a function of the Executive Branch." (Weingarten and Heberlig, 2006) Weingarten and Heberlig states however, that the court "...on rare occasions...may use their coercive powers to force the government to grant defense witness immunity at the risk of the dismissal of the indictment." (Weingarten and Heberlig, 2006)

The district court must according to Weingarten and Heberlig find that the government has engaged in discriminatory use of immunity "to gain a tactical advantage or through its own overreaching, has forced the witness the fifth amendment." The testimony of the witness is required to be "material, exculpatory, and not cumulative." (Weingarten and Heberlig, 2006) The testimony…