"Stand Your Ground": New Trends in Self-Defense Law

Posted by Chris Morales on Mon, Nov 30, 2015 @ 09:30 AM

"Stand your ground" played a part in the prosecution of George Zimmerman in Florida.

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Tags: defendant, trial, court, threat, defense, prosecution

Court-Appointed "Panel" Attorneys

Posted by Chris Morales on Wed, Oct 28, 2015 @ 11:37 AM

When there's no public defender office, or the P.D. can't take the case, the court will appoint a lawyer who is on the indigent "panel."

A "panel attorney" is a lawyer who signs-up with the court to handle indigent cases when the public defender's office cannot represent the client. In some counties, where there is no public defender office, all indigent defense work is handled by panel attorneys. Being a panel attorney is a good way to have a steady stream of work, and payment (from the courts) is reliable.

When Panel Attorneys Are Appointed

In counties that have public defender offices, panel attorneys are appointed when a judge decides that there's a "conflict of interest" that prevents representation by the P.D. In counties without P.D. offices, panel attorneys are appointed when the judge determines that the defendant meets the requirements for indigency.

A P.D. would not be allowed to represent a defendant because of a conflict of interest in the following situations:

When two defendants are charged with jointly committing a crime. Even if both are indigent, the public defender’s office cannot represent both because each defendant may try to point the finger at the other as being more to blame.

When the victim is a former public defender client. In this situation, the P.D. would have two conflicting duties: (1) to vigorously represent the current client’s interests, and (2) to not disclose any information learned from the ­previous client in confidence. To fulfill the duty of vigorous representation in the current case, the P.D. would have to use any information known about the victim that might put the victim’s testimony in doubt. Yet this could easily violate the duty owed by the P.D. to the previous client (the victim in the present case) to not use that informa­tion.

The same conflict arises when one of the prosecution's witnesses is a former public defender client.

In these situations, public ­defender offices sometimes try to avoid conflict of ­interest problems by following a “don’t peek” policy. Under this policy, a P.D. stays on a case by promising not to look in the P.D. office’s files to dig up nasty but confidential information against a former client. Judges have an economic incentive to accept such promises: It’s almost always cheaper to appoint a second P.D. than a private panel attorney. However, many counties won't practice "don't peek," realizing that it's one thing to keep the file shut, but another to expect people to keep memories at bay.

How Good is My Panel Attorney Likely to Be?

The competence of your panel attorney, like that of his public defender counterpart, will depend on how experienced he is, and how many other lawyers in his position are vying to be placed on the panel. In areas where many criminal defense lawyers are available for work, getting onto the panel is quite desirable, and courts can be very choosy about whom they select. On the other hand, in areas with a dearth of lawyers, the courts may have few choices and may end up with less experienced attorneys. Often, panels are made up of former public defenders who have left the government office to go into private practice.

Getting a Second Opinion

Defendants who think their court-appointed attorneys are not representing them adequately should consider checking the court-appointed lawyer’s advice with a private defense attorney. Even an indigent defendant may be able to pay for a short second opinion consultation with a private defense attorney. Or, a defendant may have friends who can check with an attorney who has represented them.

Defendants often talk to other defendants facing similar charges to find out if their attorneys have provided different advice. Be very careful if you do this: Remember that because each case is unique, advice for different defendants—even those charged with the same crime—may vary greatly and still be valid. Also remember that the conversation will not be confidential and can be disclosed to the prosecution. Many a defendant has been undone by the testimony of a jailhouse neighbor who was consulted for legal advice.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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Tags: charge, public defender. appointed attorney, court, indigent, jailhouse, appointed, crime, prosecution, witness

Appeals: Timeline and Process

Posted by Chris Morales on Wed, Sep 23, 2015 @ 09:20 AM

Criminal appeals involve detailed procedure. They typically take months, if not longer, to play out.

Criminal appeals are notoriously slow and complex. The following provides a general overview of the process by which they unfold. (For more information about appeals, see Appeals in Criminal Cases.)

When can I file an appeal?

The general rule is that cases may not be appealed until the trial court enters a final judgment, which is the official recording of the judge or jury’s guilty verdict or the judge’s order denying any post-trial motions. Not surprisingly, this is known as the “final judgment” rule. The ideas behind it are to prevent piecemeal and repetitive appellate review of trial judges’ rulings and to avoid appeals altogether in cases that end with not-guilty verdicts.

How long do I have to decide whether I want to appeal?

Appeals are subject to strict time limits. A defendant may have to file a document called a notice of appeal very soon after entry of final judgment, often within seven to ten days.

A notice of appeal tells the prosecution and court that the defendant intends to bring an appeal. Defendants who later change their minds may withdraw notices of appeal without penalty, but if they don’t first file their notices in time, they will likely lose their right to appeal.

How long will the whole appeal process take?

The appeals process usually takes many months. A trial transcript must be prepared, and both the defense and prosecution must prepare briefs (written arguments). Also, some cases go through two or even three levels of appellate courts.

What happens after I’ve given notice that I want to appeal?

Once the defense files a notice of appeal, a transcript of the trial is prepared and sent to the appellate court and the parties. Then the appellate court schedules the deadlines for submission of legal briefs. The appellate court may also schedule a date for oral argument for the parties to appear before the judges personally to supplement their written arguments and respond to questions.

What happens after the briefs are filed?

After the defense and prosecution file their briefs, the lawyers may have the opportunity to orally argue the appeal, as discussed above. But it’s increasingly common for courts to decide appeals on the briefs and trial record (transcript, pleadings, and exhibits) without hearing argument. If an oral argument does take place, it will likely be limited in time, from a few minutes per side in some state appellate courts to 30 minutes in some federal courts. Because both sides will have submitted their arguments in writing ahead of time, the appellate judges will know what the issues are and often limit the discussion to specific questions. After that, they may take weeks or months to issue a decision.

Get a Lawyer

If you’ve been convicted of a crime and want to challenge the conviction or sentence, consult an experienced criminal appellate lawyer. Appellate lawyers have special expertise regarding the appeals process and can provide a neutral analysis of your chances.

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Tags: judge, judgement, trial, rule, criminal case, apellate, prosecution, appeal

Fruit of the Poisonous Tree

Posted by Chris Morales on Fri, Aug 14, 2015 @ 09:00 AM

Evidence derived from illegal police actions is generally inadmissible.

You might know that evidence the cops find during an illegal search of you or your belongings is probably inadmissible in criminal court. You might also know that the prosecution typically can’t use something you’ve said to the police if officers violated your rights in obtaining the statement (for example, by coercing it out of you).

Generally speaking, the prosecution can’t use evidence that comes directly from police illegality—the seized object or the statement. But oftentimes, it also can’t use evidence that derives from the illegality—something the officers discovered as a result of the object or statement. The latter is “fruit of the poisonous tree.”

Fruit of the poisonous tree includes evidence gathered from just about any kind of police conduct that violates a defendant’s constitutional rights. Take an illegal wiretap, for example. Suppose the police begin to listen in on and record the statements of suspected drug dealers without first getting a warrant. One of the dealers says that he left some cocaine in an abandoned warehouse so that his buyer could pick it up. The police go to the building and find the drugs. Not only is the illegally recorded statement (the poisonous tree) inadmissible, so too are the drugs the officers found (the fruit of that tree).


There are exceptions to the fruit-of-the-poisonous-tree doctrine, meaning that some evidence may be admissible even though police came by it illegally. Courts use the terms “inevitable discovery” and “attenuated taint” to describe situations in which the government finds evidence illegally, but could have found it lawfully. In those instances, the evidence may be admissible. (For another way to get illegally obtained evidence into court, see Is illegally seized evidence admissible to attack a defendant’s credibility?)

Consider again the wiretapping example. Immediately after they go to the warehouse and snatch the drugs, the police hear from a reliable informant, who reports the cocaine and its location. The court finds that the informant’s tip would have provided enough information for a lawfully issued warrant to search the warehouse. In many places a court would probably admit the drugs into evidence because the officers could—and presumably would—have found them without the illegal wiretap.

Defendants' Statements

Another important exception involves statements by defendants. If officers beat a statement out of a defendant, both the statement and evidence it leads to are inadmissible. But if the defendant gives a statement voluntarily, albeit without the requisite Miranda warning, evidence the police locate because of that statement can come in at trial. It doesn’t matter that the statement itself is inadmissible—the “poisonous” fruit is nevertheless edible. (For more on Miranda and its exceptions, see When Police Violate the Miranda Rule and Exceptions to the Miranda Rule.)

Consult a Lawyer

Just like most legal concepts, fruit of the poisonous tree is complex, with nuances and exceptions. If you face criminal charges, consult an experienced criminal defense attorney. Only that kind of lawyer can protect your rights and adequately defend you.

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Tags: drugs, defendants, illegal, police actions, antidotes, prosecution, rights, constitution

"Outrageous": Police Misconduct as a Defense

Posted by Chris Morales on Wed, Jul 29, 2015 @ 12:00 PM

Sometimes the police go too far.

There are limits to what the police can do in the attempt to detect crime. If they go too far—if their conduct is outrageous, they can violate the suspect’s due process rights.

Outrageous Conduct or Entrapment?

A claim of outrageous conduct is related to, but different from a defense of entrapment. Entrapment involves a defendant’s claim that he wouldn’t have committed the crime but for enticement by the police. The prosecution argues otherwise, asserting that the police simply provided the opportunity for the crime in question and that the defendant was inclined to commit it.

But an inclination to commit a crime isn’t central to a claim of outrageous conduct. Outrageous conduct bears more on the officers’ actions and less on the defendant’s. What really matters is whether the government overstepped its bounds.

Proving Outrageous Conduct

Because there isn’t a universal test to determine whether conduct is outrageous, courts look at the circumstances surrounding the crime and consider whether the police conduct is “shocking.”

To succeed on an outrageous conduct claim, courts typically require that the defendant show that the police were extensively involved in creating the crime or pressured the defendant into participating in it.

The prosecution often claims that the outrageous conduct of police was necessary for the "greater good," like:

  • gaining a defendant’s confidence
  • concealing an undercover officer’s identity
  • protecting an informant, or
  • protecting the public.

Example: Allowing the defendant to sample drugs or to take a small portion as payment in setting up a drug deal wasn’t outrageous because it was necessary to maintain the officer’s cover. (State v. Shannon, 892 S.W.2d 761 (1995, Mo. App.).).

Tough task

It’s not easy to succeed on a claim of outrageous conduct. Even when courts don’t approve of the police conduct at issue, they usually find that it wasn’t so outrageous as to violate due process. For example, one court found that the use of an 11-year-old boy as an informant to set up his uncle on a drug charge wasn’t outrageous conduct. (Satterwhite v. State, 697 S.W.2d 774 (Tex. App. 1985).)

Similarly, another court ruled that the government using a defendant’s former attorney as an informant against the defendant wasn’t outrageous; at the time of the investigation, there was no longer an attorney-client relationship between the two. (U.S. v. Hoffecker, 530 F.3d 137 (3rd Cir. 2008).).

Creating the Crime

When police orchestrate a crime from beginning to end, courts typically consider their involvement excessive.

Example: The police created a crime by:

  • going to the defendant’s house in the middle of the night
  • showing him a loaded gun
  • accusing him of having ripped them off a month earlier by selling them powdered sugar instead of cocaine, and
  • demanding drugs or money, which the defendant then gave them.

The conduct was so outrageous that the court reversed the defendant’s conviction for the sale and possession of cocaine. (People v. Shine, 590 NYS2 d 965 (1992).)

In another case, officers provided the defendants with:

  • money to purchase food and supplies
  • a manual on how to manufacture methamphetamine
  • a government chemist to help instruct them, and
  • a police vehicle to deliver the necessary materials.

The court found this behavior outrageous. (Commonwealth v. Mathews, 500 A.2d 853 (Pa. 1985).).

Crime in progress

It’s not outrageous conduct for police to involve themselves in a crime that is already happening, or to persuade a defendant to remain involved in criminal activity. In those situations, it’s okay for police to suggest the unlawful acts, to provide the supplies necessary to complete the crime, or to even act as both supplier and buyer of contraband.

Example: It wasn’t outrageous conduct for undercover agents to convince the defendants to expand their criminal activities from forging checks and selling marijuana to producing counterfeit money and manufacturing methamphetamine. Even though the agents provided the expertise and some of the supplies, it was the defendants’ idea to expand operations and they eagerly participated. (U.S. v. Dyke, 718 F.3d 1282 (10th Cir. 2013).).


Conduct can be outrageous if the police put extreme pressure on a defendant to participate in criminal activity, especially for the first time. An example of this is where a defendant was held in jail on made-up charges and excessive bail, and could only afford to pay bail by agreeing to participate in a drug transaction created by an undercover agent. (United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986).).

Outrageous Conduct Against a Third Party

Typically, even if the conduct is outrageous, there’s no due process violation unless the police action directly affects a defendant. A defendant usually can’t win an outrageous conduct claim based on conduct that harmed a third party, such as an informant or a co-defendant.

Example: Even if it happened, an officer’s threatening to take an informant’s children away from her if she didn’t cooperate with a controlled drug buy wouldn't have been sufficiently outrageous, nor the cause of the defendant’s choice to behave illegally. (Pauser v. State, 609 S.E.2d 193 (Ga. Ct. App. 2005) (overruled on unrelated grounds).)

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Tags: defendant, coercion, court, crime, police, prosecution

Discovery: What and When the Prosecution Must Disclose

Posted by Chris Morales on Fri, Jul 10, 2015 @ 12:00 PM

Discovery—the information about the other side’s case—is supposed to promote fair trials and case settlement. Learn how it works.

Discovery is the process through which defendants find out about the prosecution’s case. For example, through standard discovery procedure, they can:

  • get copies of the arresting officers’ reports and statements made by prosecution witnesses, and
  • examine evidence that the prosecution proposes to introduce at trial.

Traditionally, the prosecutor wasn’t entitled to information about a defendant’s case. But in recent years, discovery has become more of a two-way street. Just as defendants can discover information from prosecutors, so too can prosecutors examine certain evidence in the hands of defendants.

Modern Discovery Policy

Pretrial disclosure of information through discovery can foster settlement and enhance the fairness of trials.

Can prosecutors spring evidence on defendants like they do on TV?

No. In the past, prosecutors could guard evidence from defendants with the same fervor toddlers show in protecting toy trucks and dolls from their siblings. Defendants couldn’t force prosecutors to hand over witness statements or even reveal the names of their witnesses. Now the view that advance disclosure will promote fairer trials has taken hold—if defense attorneys know ahead of time what to expect, they can better defend their clients.

Surprise evidence may produce fine drama, but it leads to poor justice. Unlike prosecutors, defendants can’t call on police agencies to help them investigate and respond to evidence they find out about for the first time at trial. Thus, every jurisdiction (each state and the federal government) has discovery rules requiring prosecutors to disclose evidence to defendants prior to trial.

Are discovery rules really intended to help defendants at trial?  

Not exclusively. Sure, advance disclosure promotes fairer trial outcomes, but it also promotes case settlement, which saves judicial time and resources. If a guilty defendant finds out before trial that the prosecution has a particularly strong case, that defendant will be more likely to plead guilty and save the government the hassle of trying the case. Discovery is likely a significant reason why at least 90% of criminal cases settle before trial.

Issues regarding settlement aside, discovery is intended to help defendants in the sense that prosecutors must hand over certaininformation that's helpful to the defense.

Does discovery mean that the prosecution has to reveal its case strategy?

No. Discovery rules generally distinguish between raw information like names of witnesses, police reports, and drug or alcohol test results, and attorney theories and strategies. The latter is called “work product.” Prosecutors don’t have to turn over their work product to defendants—otherwise, it just wouldn’t be fair. Lawyers would be incentivized to hide their work or do less of it

Is there a particular period of time prior to trial when the defense is supposed to engage in discovery?

Not really. Prosecutors can’t disclose all discovery on the eve of trial, but on the other hand, they don’t have to divulge it all way ahead of time. Discovery can unfold gradually. For example, a defendant’s attorney might receive a copy of the police report at the first court appearance, but might not receive a prosecution expert’s written analysis of blood evidence until shortly before trial.

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Tags: defendant, evidence, police office, discovery, prosecution, lawyer

Children and the Capacity for Crime

Posted by Chris Morales on Wed, Jul 08, 2015 @ 09:00 AM

Depending on their age and experience, some children may be legally incapable of committing crime. But the modern trend is to hold virtually all minors accountable for their conduct.

Historically, children have been considered to lack the capacity to commit crime in that they don’t have the mental capacity to fully understand the consequences of their actions. One’s intent or mental state is an important feature of criminal law, and if someone doesn’t have the intent to commit a crime, then often that person can’t be found guilty.

For example, if an expensive vase fell into your bag while shopping without your knowledge, then you wouldn’t be guilty of shoplifting because you lacked the intent to steal (although you might have a tough time proving that in court). Because we consider children as having a different understanding of reality, right and wrong, and societal norms, we often don’t hold them responsible if they commit a crime. In essence, the tradition in criminal law is not hold children to an adult code of conduct.

Age Limits for Prosecution

The age at which a child has the legal capacity for crime has changed over time. In the past, any child younger than the age of seven was considered to lack criminal capacity and could not be tried for a crime. Children between the ages of seven and 14 were also seen as lacking capacity, but if a prosecutor could show that the child’s age, experience, and understanding caused him or her to know the acts were wrong, then the state could proceed with a criminal prosecution.

Infancy defense

If a child younger than 14 faces criminal prosecution, he or she may be able to assert the infancy defense. This defense is based on lack-of-capacity concept. If a child asserts the infancy defense, the prosecution must show with clear proof (a high standard) that the child understood and appreciated the wrongfulness of his or her actions. The court might consider the circumstances of the crime, including whether there was planning and preparation or an attempt to conceal the crime.

Modern Trend: Hold Kids Accountable

Much of the traditional approach toward children and crime has changed over time. The creation of separate juvenile courts means that children don’t face the same criminal system as adults and aren’t exposed to the same punishment. In a juvenile adjudication, which is not a criminal prosecution, the goal is rehabilitation and treatment rather than punishment. Since the system has different goals and is centered on children, the traditional age barriers to prosecution typically don’t apply in juvenile court. However, in a few states a young child may still be able to assert the infancy defense in a juvenile court proceeding.

In addition, children can be charged and tried as adults for certain serious or violent crimes in many states. Over the past 20 years, there has been a substantial rise in the number of children being prosecuted for violent crimes in adult court. Many states have revised their laws to make it easier to treat children as adults in this regard.

See a Lawyer

If your child has committed or been charged with a crime, consult a criminal lawyer experienced in juvenile matters. Such an attorney can advise you of the applicable law and protect your child's rights.

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Tags: Criminal Law, accountable, violent crimes, attempt, attorney, crime, prosecution, children

Incest Laws and Criminal Charges

Posted by Chris Morales on Mon, May 18, 2015 @ 08:50 AM

Learn what constitutes incest and the penalties associated with it.

Incest, which is sexual relations between (non-spouse) family members, is outlawed in most countries, including the United States. Incest laws aim to promote security and unity with the family, and to prevent the genetic problems that often occur in babies whose parents are related.

In the U.S., incest is regulated by state, not federal law, and every state has one or more laws banning this problematic behavior. And while states sometimes vary in defining the outer boundaries of who is considered “family” and the exact behaviors that are off-limits, the underlying goals or policy considerations remain consistent among states.

Recognizing the disruptive nature of incest on healthy family relationships and power dynamics, all state incest laws outlaw sex between close blood relations, and many states also include step-, foster, and adoptive relations, too. And in some states, even unconsummated marriage between close relations is considered incest.

What is “Family?”

For the purposes of incest laws, “family” can mean several things: blood relations, family by adoption or marriage (including step-family members), foster families, and sometimes even “family-like” situations (such as a parent and child who live with the parent’s boy- or girlfriend).

All states include close blood relations— parents, children, aunts, uncles, and grandparents—in the definition of “family.” Closely-related cousins, such as the children of a parent’s sibling, are also included in most states, although more distant cousins are sometimes exempted from incest laws.

In general, the more distant the relation, the less likely that it will be considered as "family" for purposes of incest law. However, other factors (for example, distant cousins being raised in the same household like siblings) can make an otherwise non-problematic relationship incestuous.

Prosecution and Defenses

Often, a situation involving incest also implicates other criminal laws. For example, child abuse and rape (and statutory rape) may be charged as well. Local prosecutors have discretion about whether to bring charges under the state incest law or other applicable laws. Similarly, if a relationship is too attenuated to qualify as an incest crime, the prosecutor will usually have other laws (such as those covering molestation, lewd acts, or rape) under which to prosecute the defendant.

Consent not a defense

A defendant may be convicted of engaging in incest if he knowingly engaged in a sexual encounter with a family member (if no encounter actually took place, the prosecutor may charge the defendant with attempted incest). Because of this, the consent of the other party is not a defense. Of course, as noted, if the victim did not consent and was forced, or was underage, a defendant may face charges for other sex offenses—such as rape and statutory rape—instead of (or in addition to) the incest charge.

For more on rape, see Statutory Rape. And to learn more about statutory rape, see Rape Laws, Defenses, and Penalties.

Who is charged?

Although the ages of the parties are not relevant in proving that incest took place (and are not a defense to such charges), the age of the parties may be relevant as far as who is prosecuted for the crime. For example, if an adult parent has consensual sex with a minor son or daughter, the parent may be prosecuted, while the child will be considered a victim

But where two siblings of similar age are sexually involved with each other, they might both be prosecuted (although many states handle crimes committed by minors through juvenile or family court). For more on crimes committed by minors, see The Juvenile Justice System.

Old cases and the statute of limitations

All states set time periods in which a crime may be prosecuted, such as five or ten years after the incident. Such laws are intended to ensure that cases are handled relatively quickly, and recognize the danger in prosecuting old cases where the facts may be difficult to discern. In some states, if a long time has passed since the time of an incestuous encounter or relationship and a prosecution, the defendant may claim that the statute of limitations has run.

For more information on state statutes of limitation, with state-by-state information, see Criminal Statutes of Limitations.


Penalties for an incest conviction vary according to state law, but may include separation of family members (if a child is involved, the child may be placed in foster or other care), or a jail or prison term of several months to many years.

For information on felony charges and sentences on a state-by-state basis, see Classification of Crimes: Felonies & Misdemeanors.

Help for Incest Survivors

If you or someone you know is a victim of incest or another sex crime, there is free and confidential help available to you. Contact the Rape, Abuse & Incest National Network (RAINN) for online help and local resources.

Talk to a Lawyer

If you are facing an incest charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you, help develop any defenses that might apply to your case, and will know how local prosecutors and judges typically handle cases like yours.

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Tags: Criminal Charges, incest laws, penalties, federal law, defense, prosecution

Burdens of Proof in Criminal Cases

Posted by Chris Morales on Fri, May 15, 2015 @ 09:20 AM

Generally, the prosecution has the burden of proving every element of a crime beyond a reasonable doubt. But while a defendant isn’t required to prove innocence in order to avoid conviction, the prosecution doesn’t have to prove guilt to the point of absolute certainty. And despite the general rule that the prosecution bears the burden of proof, there are instances when the burden shifts to the defendant.

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Tags: defendant, guilty, conviction, burden, crime, prosecution, beyond a reasonable doubt, issues of proof

Immunity in Exchange for Testimony

Posted by Chris Morales on Tue, May 12, 2015 @ 09:50 AM

There are two kinds of immunity, one more common than the other.

“You have the right to remain silent” is perhaps the most recognized adage in our criminal justice system. This rule comes from the Fifth Amendment to the U.S. Constitution, which guarantees that “no person . . . shall be compelled in a criminal case to be a witness against himself.” But the Fifth Amendment doesn’t provide an absolute right to remain silent and not answer any questions. Rather, it protects people from having to answer incriminating questions about themselves.

(For related information, see What Immunity Means for a Witness and Limits on Witness Immunity.)

A witness who is asked to provide information that could be incriminating in any way can invoke the Fifth Amendment privilegeand refuse to answer. Incriminating questions require a witness to give answers that could be used to convict the witness of a crime. A question is incriminating when it calls for an answer that provides either:

  • direct evidence of a crime (for example, “I robbed the bank”) or
  • information that could lead to evidence of a crime (for example, the name of someone who could testify to the fact that the witness robbed the bank).

But even if a witness invokes the Fifth Amendment privilege, a prosecutor can override the privilege by giving the witness immunity from prosecution in exchange for testimony.

There are two basic types of immunity from prosecution.

Transactional Immunity

Transactional immunity is the broadest type of immunity; it offers complete protection from future prosecution for any matter mentioned in the immunized testimony. Because it’s so broad, transactional immunity is also commonly referred to as “total” or “blanket” immunity.

Although transactional immunity offers the most protection for a witness, it doesn’t prevent prosecution for criminal activities that are unrelated to something discussed in the immunized testimony. And transactional immunity isn’t always available—for example, the federal system doesn’t use it.

To illustrate, suppose Witness and Defendant commit an armed bank robbery. The prosecution grants Witness transactional immunity in exchange for admitting his participation in the robbery and testifying against Defendant at Defendant’s trial. During his testimony, Witness reveals that he used his portion of the money stolen from the bank to purchase cocaine from Dealer.

Can Witness be successfully prosecuted for bank robbery? No. The grant of transactional immunity protects him.

Can Witness be successfully prosecuted for buying cocaine? No. Transactional immunity guarantees that Witness cannot be prosecuted for any criminal activity he discussed during his immunized testimony.

What if the prosecution learns elsewhere about a different drug purchase? If, after Witness testifies in Defendant’s trial, the prosecution learns from Dealer that Witness came to him two months before the bank robbery and purchased heroin, Witness won’t be so fortunate. The prosecution can charge him for that purchase because it’s unrelated to the events Witness testified to: The purchase of heroin occurred before the bank robbery and was unrelated to either that crime or the cocaine purchase he mentioned.

“Use and Derivative Use” Immunity

Use and derivative use immunity is more common (used by both state and federal prosecutors) and narrower than transactional immunity. It prevents the prosecution from using the witness’s statements (“use”) or any evidence derived from those statements (“derivative use”) against the witness in a criminal prosecution. In theory, use and derivative use immunity provides as much protection as the witness not testifying.

However, use and derivative use immunity doesn’t prevent prosecutors from gathering additional, independent evidence to later use against a witness. If, while testifying, a witness gives an indication of having committed a crime and the prosecution obtains independent evidence of that crime (from a source distinct from the witness), then the witness is subject to prosecution for that crime.

For example, suppose the prosecution grants Witness use and derivative use immunity for testifying in Defendant’s armed robbery trial. Witness states that after he and Defendant robbed the bank, he took some of the stolen money and used it to buy 100 kilograms of cocaine from Dealer. Witness then sold the 100 kilograms of cocaine to Buyer.

Can the prosecution get Witness for armed robbery? Yes, but the prosecution cannot use Witness’s immunized testimony against him. It must rely on independent evidence that Witness robbed the bank—for example, a tip from someone who saw the crime take place.

Can the prosecution go after Witness for cocaine sale? Suppose Addict was present when Witness sold the cocaine to Buyer. Addict is later arrested and reveals that he saw this sale. In that scenario, the prosecution has proof of the sales crime from an independent source (Addict). The prosecution can use Addict’s testimony to prosecute Witness for the crime.

Consult a Lawyer

If you’ve been asked to or think you should testify or otherwise cooperate with the authorities, consult an experienced criminal defense lawyer. Only such a lawyer can explain the ins and outs of immunity and otherwise protect your rights.

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Tags: testify, incriminating, immunity, crime, prosecution, constitution