You have heard the saying, “You have the right to remain silent,”
as this is one of the most familiar adages from the criminal justice system.
This saying derives from the Fifth Amendment, which says individuals shall
not be compelled to act as witnesses against themselves in criminal cases.
However, the Fifth Amendment to the U.S. Constitution does not translate
to mean that people have the right not to answer
any questions. Instead, it protects individuals from being compelled to answer
If a witness is asked to provide information that could incriminate themselves,
he or she has the right to invoke the Fifth Amendment privilege to NOT
answer any questions that would be incriminating. An incriminating question
is one that could be used to convict the individual answering the question.
There is a catch here: if a witness invokes their Fifth Amendment privilege,
the prosecutor has the ability to override the witness’s privilege
by giving him or her “immunity” from prosecution in exchange
for the person’s testimony.
“Immunity” means the witness will not be prosecuted for their
testimony – they are immune or “safe” from prosecution.
Two Types of Immunity
Essentially, there are two basic types of immunity, they are “transactional
immunity” and “use and derivative use” immunity. Transactional
immunity offers the witness complete protection from prosecution. Since
transactional immunity offers broad protection, it’s commonly referred
to as “total immunity.”
Transactional immunity does not protect the witness from being prosecuted
for other, unrelated criminal activities. Further, transactional immunity
only applies to state-level crimes; it does not apply to
In contrast, “use and derivative use” immunity applies to state
and federal cases; it has a narrower scope than transactional immunity.
The prosecution cannot use the witness’s statements or evidence
obtained from those statements against him or her. Theoretically, it’s
as if the witness never testified.
Use and derivative use immunity is limited, meaning, if the prosecutors
gather additional evidence, later on they
can use it against the witness.
Need help? Contact our Plano criminal defense firm.
If you are facing criminal charges and are interested in learning more
about transactional and use and derivative use immunity, don’t hesitate to
contact The Zendeh Del Law Firm, PLLC to meet with a Plano
criminal defense attorney.