Article Preview: “Defense Witnesses Need Immunity Too: Why the Supreme Court Should Adopt the Ninth Circuit’s Approach to Defense Witness Immunity” by Alison Field

Immunity is an important tool for prosecutors. The ability to offer immunity from prosecution to witnesses in criminal cases gives the prosecutor a bargaining chip by which to secure valuable testimony. The federal use-immunity statute, 18 U.S.C. § 6002, grants federal prosecutors exclusive authority to request from the court an order granting a witness limited immunity in a proceeding when the witness exercises his or her Fifth Amendment rights. This immunity protects the witness against the government’s use of such testimony to prosecute the witness thereafter.

In contrast, the defendant’s resources to encourage or protect the testimony of a witness who “takes the Fifth,” are almost nonexistent. No corresponding statutory provision is granted; unless the court compels a grant of immunity, the prosecution will rarely seek immunity for a defendant’s witness. Further, courts are often reluctant to afford defense witness immunity due to the exclusive grant of statutory authority and often impose difficult standards to obtain such relief.

Proponents of defense witness immunity insist that it is needed to ensure a fair and just trial and protect the defendant’s constitutional rights. Although the Supreme Court considered the constitutionality of immunity statutes on several occasions, the Court has yet to decide what circumstances entitle a defendant to immunity for his or her witness. Since the Court denied certiorari to Autry v. McKaskle, 465 U.S. 1085 (1990), in 1984, every court of appeals has ruled on the issue of defense witness immunity, resulting in a split among the circuits on how to handle this matter.

In her Article, Defense Witnesses Need Immunity too: Why the Supreme Court Should Adopt the Ninth Circuit’s Approach to Defense Witness Immunity, Alison M. Field urges that this issue is overdue for Supreme Court consideration. This Article, which will be featured in the New England Law Review’s Volume 49, Issue 2, argues that courts should be granted broader discretion in providing for defense witness immunity; and accordingly, that the Supreme Court should adopt the approach taken by the Ninth Circuit.

Field begins her analysis with a discussion of the three prominent approaches to defense witness immunity. She suggests the Third and Second Circuits employed inadequate approaches that placed an insurmountable burden on defendants, an unnecessary focus on the prosecutor’s intent, an inability of the judiciary to apply a “balancing test,” and presented countervailing separation of powers considerations. Field advocates that the approach adopted by the Ninth Circuit—the prosecutorial misconduct minority approach—provides a superior method for considering defense witness immunity and should be adopted by the Supreme Court.

Field expounds on her denouncement by asserting that the Ninth Circuit’s approach is the best way to address defense witness immunity because it is more lenient, focuses on the effect of the prosecutor’s actions, and balances grants of immunity for prosecutors and defendants. While still maintaining reasonable limitations on defense witness immunity, this approach strikes a balance that provides the option of witness immunity to both prosecutors and defendants. Finally, and perhaps most importantly, Field maintains that the Ninth Circuit’s approach provides the best means by which to protect the defendant’s constitutional rights to due process and a fair trial.

Be sure to read the full article in the New England Law Review, Volume 49, Issue 2, due to be posted here in the Spring.

Contributing Editor: Nadine Petsuck

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