It is a common technique by law enforcement and prosecutors to offer someone accused of a crime immunity in exchange for their cooperation. This cooperation is usually defined as testifying in court as to the details of a crime in which they were involved. The goal of this technique is to exchange the conviction of someone involved in relatively minor wrongdoing for the conviction of someone involved in more serious crime, or to bring down a criminal network.
By signing onto an immunity deal, a witness is compelled to testify for the prosecution. In exchange, the witness cannot be charged for any crime in which they are implicated by their testimony. This is in line with the Fifth Amendment, the famous ‘right to remain silent,’ which prohibits a person being forced to self-incriminate. While a witness in an immunity deal is effectively forced to testify upon agreeing to the deal, this testimony cannot result in charges, preventing it from being self-incriminating as defined under the Fifth Amendment.
In Massachusetts, immunity agreements are governed by General Laws Chapter 233, Sections 20D through 20I. These sections lay out the requirements for corroborating evidence, which crimes are eligible for immunity deals, and the prohibition on prosecuting based on information within the scope of the deal.
Types of Immunity
There are two types of immunity: transactional immunity and use and derivative use immunity. Transactional immunity is also called total immunity. In a total immunity deal, the prosecution is barred from bringing charges against a witness related to the subject of the testimony. Use and derivative use immunity, on the other hand, is preferred by prosecutors as it leaves open the potential of further prosecution. Under this more limited type of immunity, a person cannot be charged based on any information in his or her testimony, but if more information is discovered about the witness’s role in a crime independently of the testimony, the witness may still be prosecuted.
A skilled defense attorney can argue that subsequent prosecution is in violation of an immunity deal.
Criminal Defense Attorneys Working for You
If you have been charged with a crime and are considering an immunity deal, or if you have been offered an immunity deal, you need a skilled advocate to help you evaluate your options and how they relate to your best interests. Your first call should be to my office at (508) 752-2727.
Michael Franklin, Esq.