Defense Witness Immunity the Supreme

Defense Witness Immunity

The Supreme court in Brady v. Maryland 373 U.S. 83 (1963) has settled any controversy regarding the prosecutor's duty to disclose exculpatory evidence. However, in 1970 Congress delegated the Executive branch; more specifically prosecutor's trying a case, the task of granting or withholding witness immunity and therefore, for all intents and purposes, deciding what evidence will be admitted and what evidence will not. The sixth amendment provides that the accused "shall enjoy the right...to be confronted with the witnesses against him" and "...to have compulsory process for obtaining witnesses in his favor..." Yet many federal courts have since held the Immunity Act of 1970 in view that there is no authority placed with the judiciary to grant immunity to a defense witness who could not provide exculpatory evidence. Few circuits have left the door open for a defense witness immunity, but the have imposed a high burden for the defense to meet. The burden is so high in fact, that defense witness immunity has not been granted under these decisions. Recently the third circuit has lowered these standards drastically. Part I will briefly discuss the 5th amendment right against self-incrimination and the individual who has been accused sixth amendment right to compel testimony and their application to defense witness immunity. Part II of this work will briefly compare and contrast various federal court decisions regarding the judiciary review of a prosecutor's decision to withhold immunity. Part III will compare the existing tests and explain why each are unfair and unconstitutional. Part IV of this work will discuss a remedy to this issue..

PART I

The Fifth Amendment

The Fifth Amendment to the United States Constitution, is part of the Bill of Rights and provides protection against abuse of government authority in legal proceedings. The rights contained in the Fifth Amendment can be traced to English common law and specifically the Magna Carta in 1215. Stated specifically in the text of the Fifth Amendment is as follows:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation"

The Fifth Amendment protects witnesses from being compelled to incriminate themselves. When an individual pleads the 'Fifth' they are invoking their Constitutional right to refuse to answer a question because their response might provide evidence that is self-incriminating of an illegal or criminal act that could be punishable by fines or penalties or even forfeiture.

The Sixth Amendment

The Sixth Amendment to the United States Constitution is part of the United States Bill of Rights which sets the protection of individual Constitutional rights as they are related to federal court criminal prosecutions. The protections contained in this amendment have been applied by the Supreme Court to the states through the Fourteenth Amendment Due Process Clause. The text of the Sixth Amendment states as follows:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

Specific rights under the Sixth Amendment include the following rights:

(1) Right to a speedy trial;

(2) Right to a public trial;

(3) Right to a trial by jury;

(4) Right to be notified of offense which individual has been accused of committing;

(5) Right to confrontation of witnesses for prosecution;

(6) Right to counsel; and (7) Right to self-representation.

PART II

Sosnov (nd) states in the work entitled: "Separation of Powers Shell Game: The Federal Witness Immunity Act" that there has always "been a tension between the recognition of testimonial privileges and the need for testimony to ensure an accurate and fair fact-finding process." (Sosnov, nd)

A Decision is often made as to whether the witness's privilege is overcome by an exception, the need for such testimony, or other countervailing reasons Many circuits have held that Congress has clearly delegated authority to the executive branch and granting immunity is at the prosecutor's discretion." (nd)

The case of United States of America, Appellee, v. Norman Turkish, Defendant-Appellant. United States Court of Appeals for the Second Circuit, 623 F.2d769 (1980) is one that involves a criminal appeal primarily on the issue of whether a defendant is entitled to immunity conferred upon witnesses for the defense invoking their rights against self-incrimination. This appeal was brought by Norman Turkish who was convicted by a jury in the Southern District of New York of tax evasion and filing of false returns on his income taxes as well as for conspiracy to defraud the United States. The evidence established by the government was that Turkish was a primary participants in a scheme that utilized means that were fraudulent in enabling C.R. Rittenberry and Associates, Inc., an oil company, to create artificial tax losses in one year, offset by equally artificial taxable gains in a subsequent year, thereby postponing for a year the taxes on millions of dollars of corporate income." (Atl Law, 2009)

It is related that the scheme is one that involved the use of "tax straddles, the simultaneous purchase and sale at different prices of equal numbers of commodity futures contracts to be performed in different months. In the normal use of tax straddles, opportunities for arguably lawful tax avoidance are created when the market price varies from the prices at which the original contracts were both bought and sold. If the market declines, the trader offsets his purchase with an equivalent sale, thereby locking in a tax loss on his original purchase. He then offsets his original sale contract with an equivalent purchase, thereby locking in an approximately equal profit on his original sale contract. He benefits when the profit is taxable in the year following realization of the loss. In normal transactions the trader takes the risk that market price movements will be too narrow to create much opportunity for tax postponement and also the more serious risk that prices will not move uniformly with respect to both his original contracts. In the latter event the profit available to be locked in may be less than the locked-in loss. Turkish and others avoided these risks by fraudulently manipulating virtually the entire business of one trading ring on the New York Cotton Exchange, the Crude Oil Futures Market. This enabled them to move prices up and down at will, so that Rittenberry could take short-term capital losses during one tax year and defer an equal amount of off-setting capital gain to a subsequent year, all with no risk and a considerable saving in the postponement of taxes. Turkish not only orchestrated the fraudulent aspects of the scheme but also evaded taxes on the money he received as compensation for his role."

It was the contention of Turkish that his conviction should be reversed due to the conspiracy count of the indictment failing to charge an offense and being "unconstitutionally vague."

The claim for defense witness immunity arose when the government, presenting its case, called various witnesses involved in the fraud and some of whom were coconspirators. Of these it is stated that three had plead guilty to participating in the conspiracy and had in return received agreements in letter form that they would not be prosecuted "for any other commodity market crimes or related tax offenses if they testified truthfully."

It is stated that Turkish and his co-defendant "during the trial and after the Government had concluded its case...moved that seventeen of the prospective defense witnesses be granted "use" immunity and required to testify under 6002. They argued that these witnesses could provide exculpatory testimony, but would invoke their Fifth Amendment privilege and decline to testify unless compelled to do so. Judge Broderick invited the Government to consider granting "use" immunity to these witnesses pursuant to 6002. The Government did consider the matter, but decided not to grant immunity. Judge Broderick then reserved decision on defendants' motion until after the trial, at which time the defendants moved for a new trial or acquittal. On August 23, 1979, Judge Broderick denied the defendants' motion."

It is stated that in a subsequent opinion, United States v. Turkish (S.D.N.Y.1979), Judge Broderick "...set forth his analysis of the issue and his reasons for denying the motion. Judge Broderick concluded that the Compulsory Process Clause of the Sixth Amendment does not give a defendant the right to require immunization of a witness, but that such a right is "probably" contained in the Due Process Clause of the Fifth Amendment. 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 Circuit hinted in Gleason and Lang, unfairness may inhere in some situations because the Government's grant of use immunity to its witnesses affords it an advantage over the defendant's ability to present a defense. 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 furthermore must be unobtainable from any other source." (Weingarten and Heberlig, 2006)

Weingarten and Heberlig states that this approach is one that acknowledges the "essential unfairness of permitting the Government to manipulate its immunity power to elicit testimony from prosecution witnesses who invoke their right not to testify, while declining to use that power to elicit from recalcitrant defense witnesses testimony who invoke their right not to testify, while declining to use that power to elicit from prosecution witnesses who invoke their right not to testify, while declining to use that power to elicit from recalcitrant defense witnesses testimony that meets the three-part test." (Weingarten and Heberlig, 2006) This approach is one that leaves the decision of immunity to the executive branch but interposes the judicial power to subject the government to certain choices concerning its action.

Weingarten and Heberlig states that the first part of the defense witness immunity test requires "a showing that the government has engaged in discriminatory use of immunity to gain a tactical advantage or through its own overreaching, has forced the witness to invoke the fifth amendment. Overreaching according to the test includes:

(1) conduct "which substantially interferes with the defense, or with a potential defense witness's unfettered choice to testify," or (2) "deliberate denial of immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation." (Weingarten and Heberlig, 2006)

Meeting the first prong of this test has created significant difficulty for defendants and it has been the reasoning of courts that "granting defense witness immunity creates obstacles to future prosecution of such witnesses and gives rise to the likelihood of "cooperative perjury among law violators." For these reasons, some courts have suggested that all a prosecutor must do to defeat a motion for defense witness immunity is represent to the district court in an ex-parte declaration that the witness is a potential target of prosecution." (Weingarten and Heberlig, 2006)

Other courts have held that situations exist in which "prosecutorial overreaching may justify ordering the government to grant defense witness immunity or face dismissal of the indictment. For instance, in United States v. Lord, the court reversed a conviction and remanded the matter for an evidentiary hearing to determine whether the prosecutor caused a potential defense witness to invoke the Fifth Amendment by telling the witness prior to trial that his role in the crime "was so minor that he really didn't want to prosecute ... But he would, depending on [the witness's] testimony." If on remand the district court concluded that the prosecutor engaged in such conduct, the court was ordered to enter a judgment of acquittal unless the prosecutor agreed to immunize the witness." (Weingarten and Heberlig, 2006)

It has been suggested by recent tactics of the prosecution that courts must necessarily re-evaluate what conduct by the government will amount to a discriminatory use of immunity to gain a tactical advantage in litigation, and thus be sufficient to meet the first prong of the defense witness immunity standard." (Weingarten and Heberlig, 2006) Weingarten and Heberlig states that courts should as well "...re-evaluate decisions suggesting that trial judges may "summarily reject" claims for defense witness immunity if the prosecutor submits an ex-parte declaration indicating that the witness is "an actual or potential target of prosecution." If the government could summarily defeat such a motion merely by stating ex-parte that the witness at issue is a potential target of prosecution, a defendant could never obtain relief from the government's tactical manipulation or misconduct. Such decisions were based on legitimate concerns that granting immunity to defense witnesses might invite perjury or make it difficult for the government to prosecute the witness in the future." (Weingarten and Heberlig, 2006)

These concerns are stated to not be applicable in every case however, there should be a close examination by courts as to whether the refusal of the government to "immunize or decline prosecution of a potential defense witness is truly based on legitimate prosecutorial discretion rather than a desire to withhold exculpatory evidence from the defendant." (Weingarten and Heberlig, 2006) According to Reid there is no plausible reason that the government can state for failing to make a decision to prosecute the witnesses at issue prior to trial "and there is a virtual certainty that witnesses will invoke the Fifth Amendment if the government refuses to decline prosecution." (Weingarten and Heberlig, 2006)

In summary, Weingarten and Heberlig states that it has been indicated by recent experience indicates that the government "routinely determines who to immunize and who to designate as unindicted co-conspirators, not based on prosecutorial discretion or the search for the truth, but rather on tactical considerations designed to:

(1) maximize the likelihood that potential defense witnesses will invoke their Fifth Amendment right to decline to testify, and (2) enable the government to introduce evidence through the co-conspirator hearsay exception that it could not obtain from the actual witnesses themselves. (Weingarten and Heberlig, 2006)

Stated as the second of the three prongs for the test for defense witness immunity is the requirement that defendant to establish that "the witnesses at issue would provide testimony that is material, exculpatory, and not cumulative." (Weingarten and Heberlig, 2006)

There have been few courts which have provided a definition of 'exculpatory evidence' in the light of the defense witness immunity doctrine and this is stated to be largely "because it is so difficult for the defendant to satisfy the first prong of the test by demonstrating that the government engaged in a discriminatory use of immunity to gain a tactical advantage." (Weingarten and Heberlig, 2006) Court have held that in the context of the Brady obligations of the government that exculpatory evidence "means favorable evidence to the accused...[that] is material either to guilt or punishment or useful to impeach the credibility of a government witness." (Weingarten and Heberlig, 2006)

However, in our experience, potential defense witnesses - particularly those that have been interviewed by the government and warned that they are potential targets of prosecution - are rarely willing to be interviewed by defense counsel for fear that the government will learn of their cooperation with defense counsel and seek retribution. Fortunately, in many large white collar crime cases, there are other sources of information available. Corporations under siege by allegations of corruption frequently commission an outside law firm to conduct an internal investigation and publish a report summarizing its results. In such cases, a defendant may be able to identify the exculpatory evidence in the underlying witness interview memoranda if it is available in discovery in the criminal case or in parallel civil proceedings. Finally, in some cases, the government may disclose to the defendant its own witness interview memoranda or grand jury transcripts of potentially exculpatory witnesses pursuant to its Brady and Giglio obligations." (Weingarten and Heberlig, 2006)

The defendant's challenge next is to convince "the district court that the potential defense witness testimony is exculpatory." (Weingarten and Heberlig, 2006) In such a case, testimony from other similarly-situated corporate executives that:

(1) they participated in the same events as the defendant but did not believe they were engaged in fraud, or (2) they never discussed fraud or had other conspiratorial conversations with the defendant, is exculpatory because it demonstrates circumstantially that the defendant was unaware of any fraud and did not act with criminal intent. (Weingarten and Heberlig, 2006)

In other white collar crime cases, the defendant may contend that he had no knowledge of fraudulent acts committed by others at the company and was deceived by executives who committed fraud under his watch. In such a case, testimony from other senior executives that they too were unaware of fraud at the company and were deceived by their co-workers is exculpatory because it renders more plausible the defendant's similar defense. In essence, evidence that other smart, sophisticated corporate executives were duped and unaware of any "red flags" suggesting fraud at the company strongly supports a lack of knowledge defense. Stated as the final prong of the three-part test for defense witness immunity makes a requirement of the testimony to be 'unobtainable from any other source" and although this is analyzed case-by-case it is stated by Weingarten and Heberlig (2006) to be "fairly easy for defendants to meet this standard." (Weingarten and Heberlig, 2006)

In the event that the defendant's request for defense witness immunity is denied by the district court the remedies available are stated to include:

(1) impeaching the witness for the government's testimony upon the basis of inconsistency in prior statements;

(2) request a missing witness instruction that would permit the jury to infer that the testimony of the individuals for whom he was unable to obtain immunity would have been unfavorable to the government.

Through declaring an individual to be a co-conspirator the government is enabled to admit their out-of-court statements as substantive evidence into the case for the court's consideration. (Weingarten and Heberlig, 2006) Federal Rule 806: provides the declarant's credibility in a co-conspirator statement which may be assaulted by and with any evidence " which would be admissible for those purposes if declarant had testified as a witness." (Weingarten and Heberlig, 2006)