You’ve probably seen people on TV shows who have been involved in some type of criminal activity being offered immunity by prosecutors for providing information on “bigger fish” – those who have done far more serious things than they have. This happens frequently with organized crime and drug cases, but it can apply to just about any type of crime where more than one person has some knowledge or involvement.
Often, the mastermind of a crime may not even be known to law enforcement or prosecutors, and they may be eager to learn more. That can manifest in an offer of immunity for someone who is seen as a bit player in the overall scheme.
How is immunity granted?
Prosecutors can grant immunity in several different ways. They may get a formal court order. They may put the offer in writing. They may simply make a verbal commitment.
Immunity can allow a person to go from someone facing charges to a “cooperating witness.” By providing immunity from prosecution for whatever their role in the crime was, they prevent them from taking the stand and asserting their Fifth Amendment right to self-incrimination.
The two types of immunity
If you’re seeking immunity or if it’s offered to you, it’s essential to know and understand the two different types – transactional and use immunity. Transactional immunity (also known as total or blanket immunity) protects a cooperating witness from any prosecution for the crime at hand. It doesn’t protect them from any other crimes they may have committed.
Maybe someone was caught selling Ecstasy on their college campus. That’s illegal, but prosecutors are more interested in finding the person who’s supplying college kids across the area with the drug to sell. They might choose to give that college student transactional immunity in exchange for leading them to their supplier and testifying against them. If that college student gets caught shoplifting a designer jacket from Belk, that immunity isn’t going to protect them.
Use immunity is more limited. It simply prevents prosecutors from using a person’s testimony against them. It doesn’t prevent them from prosecuting that person for the crime based on other evidence or testimony.
Don’t try to negotiate an agreement for yourself or simply accept whatever is offered to you. An experienced criminal defense attorney can negotiate with prosecutors to get the best immunity agreement for you.