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Immunity From Prosecution In Exchange For Testimony At A Criminal Trial


Even with extensive investigations, the prosecution may often rely on accomplices when prosecuting a person for committing a criminal offense. A person who is considered an accomplice or who has knowledge of the crimes can often present critical evidence that makes the prosecution’s case. Because of this, the prosecution often offers this kind of witness immunity from prosecution in order to ensure that the witness testifies for the prosecution at trial.

The Fifth Amendment protects people from being forced to give statements, including testimony in court, that could incriminate them or serve as evidence against them in a criminal case. This is why if the prosecution wants a witness to testify, and the witness may end up giving information that incriminates him in a crime, the prosecution first offers immunity. Without immunity, the witness can choose to “plead the fifth” and refuse to testify.

Immunity from prosecution means that the witness limits his risk of being prosecuted for crimes associated with his testimony. There are two kinds of immunity that can be offered to a witness, these are use or derivative immunity, and transactional immunity. Of the two, transactional immunity offers the witness more protection than use immunity.

When a witness is given use immunity, it means that the prosecution cannot use the witness’s testimony or any evidence that is derived from that testimony against that witness in a later prosecution in which the witness is the defendant. Florida law grants immunity to anyone who is compelled to testify in a case by use of a subpoena and provides that the testimony the person gives cannot later be used against him in a criminal trial. However, the immunity granted under the statute does not extend to a criminal investigation or proceeding for perjury committed while testifying or for any perjury committed afterwards.

A witness who is given transactional immunity enjoys broader protection. With transactional immunity, the witness cannot be prosecuted for any criminal activity he mentions in his testimony. Under use immunity, if the witness testifies about additional criminal activity that is not related to the prosecution he is testifying about, he can be prosecuted for that additional criminal activity. This is why transactional immunity is preferred.

Once a person has been granted immunity in a case, especially transactional immunity, the person cannot plead the fifth when on the stand and refuse to answer questions related to the immunity granted. The protections of the fifth amendment would not generally apply if the person has been assured that he will not be prosecuted for testifying. This would be trickier with use immunity, where the witness would have to be more careful with his answers.

If you receive are asked to voluntarily appear before a grand jury to testify or testify in a criminal trial against another defendant and you believe that part of your testimony may incriminate you, you need to contact an experienced criminal defense attorney. You may need to negotiate with the prosecution in order to ensure that you are well protected against criminal prosecution before you testify.

Contact us for More Information

If you are considering becoming a state witness, or have received a subpoena to testify in a criminal case, or if you are facing criminal charges in West Palm Beach, Florida, you need an experienced criminal defense attorney representing you. Contact Scott Berry Law for more information and for a free consultation today.


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