Defense Witness Immunity The Supreme Thesis

Length: 22 pages Sources: 10 Subject: Business - Law Type: Thesis Paper: #41754631 Related Topics: Magna Carta, Legal Memorandum, Trial Brief, Constitutional
Excerpt from Thesis :

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...


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


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…

Sources Used in Documents:


Cornell University Law School (2009) "Bill of Rights from Cornell University Law School. United States Constitution. LIT/Legal Information Institute. Online available at: Cornell University Law School. "Bill of Rights from Cornell University Law School

Charters of Freedom - The Declaration of Independence, The Constitution, The Bill of Rights

Sosnov, Leonard N. (nd) Separation of Powers Shell Game: The Federal Witness Immunity Act. Temple Law Review.

UNITED STATES of America, Appellee, v. Norman TURKISH, Defendant-Appellant. United States Court of Appeals for the Second Circuit May 27, 1980 623 F.2d 769. Online available at:
Weingarten, Reid H. And Heberlig, Brian M. (2006) The Defense Witness Immunity Doctrine: The Time Has Come to Give it Strength to Address Prosecutorial Overreaching. American Criminal Law Review. Vol. 43 No. 3 Summer 2006. Online available at:
UNITED STATES of America, Appellee, v. Norman TURKISH, Defendant-Appellant. United States Court of Appeals for the Second Circuit May 27, 1980 623 F.2d 769. Online available at:
Weingarten, Reid H. And Heberlig, Brian M. (2006) The Defense Witness Immunity Doctrine: The Time Has Come to Give it Strength to Address Prosecutorial Overreaching. American Criminal Law Review. Vol. 43 No. 3 Summer 2006. Online available at:

Cite this Document:

"Defense Witness Immunity The Supreme" (2009, November 18) Retrieved November 29, 2022, from

"Defense Witness Immunity The Supreme" 18 November 2009. Web.29 November. 2022. <>

"Defense Witness Immunity The Supreme", 18 November 2009, Accessed.29 November. 2022,

Related Documents
Due Process in Supreme Court
Words: 993 Length: 3 Pages Topic: Business - Law Paper #: 4103766

Supreme Court In the case of Brady v. Maryland (1963) is a 14th Amendment case governing due process in the court of law. Brady was prosecuted for murder in a case where there were two accused, the other being a man named Boblit. There was a handwritten confession from Boblit stating that he was the killer. While Brady had admitted that he was there, he contended that he was not the

Privacy Rights in the Case
Words: 6316 Length: 15 Pages Topic: Criminal Justice Paper #: 57789102

Layne', in December 1994, the Office of the Information and Privacy Commissioner received a compliant that the Vancouver Police Department had taken a decision to block out the faces of those person who were being interviewed by the police in the program, "To Serve and to Protect." The complainant was KF Media Inc., of Vancouver B.C. KF Media Inc. who was the producer of the program, and it generally

Criminal Procedure
Words: 3499 Length: 12 Pages Topic: Criminal Justice Paper #: 32042200

Crime Control/Procedures The term "play in the joints" refers to flexibility within the law that allows for a certain amount of discretion to occur within the prosecution and judge. Even though there is discretion within the manner in which the Judge may interpret sentencing, procedure and rulings, there are still formal rules of law that provide for a basis for upholding the Constitution. In a given situation, for example, the Judge

Perjury False Testimony Lying Under Oath
Words: 1404 Length: 4 Pages Topic: Criminal Justice Paper #: 10163487

Perjury Aristotle believed there should be guidelines governing the act of giving testimony (Kennedy, 2004, p. 227-228). For example, a jury member should place greater weight on the reputation and social standing of the witness, than on the content of the testimony given. If a person of good character is called to testify before a formal investigative body, a reasonable listener is therefore required to open their mind to anything the

Troy Stone Is Showing How the Police
Words: 1666 Length: 5 Pages Topic: Criminal Justice Paper #: 46722790

Troy Stone is showing how the police engaged in questionable tactics. This is based upon the fact that they have a witness who identified him. Yet, they were not able to come up with any corroborating evidence to directly link him to the murder. To make matters worse, they violated his constitutional rights in the process. These issues are highlighting how there were questionable tactics used to obtain the

Equality of Arms in International
Words: 3446 Length: 10 Pages Topic: Business - Law Paper #: 81137224

Historically, since the end of the Vietnam War in 1975, Cambodia has suffered under the oppression of dictators such as Pol Pot, who instituted Communism and its related rights violations of law. As a result, the question of the future of Cambodia has become vitally important and likewise, international law has had to step in to remedy the situation. Statutes and Charters from the United Nations Tribunals The evolution of international