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What it Means to Grant Immunity

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 self-incriminating questions.

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 federal cases.

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.

Categories: Criminal Defense