Crime & Federalism

Aside from plea bargaining, one of the prosecutor's greatest procedural advantage is the ability to immunize witnesses.  If a prosecutor needs to make a case against a defendant, the prosecutor can make a deal with someone who has relevant information: Testify, and we won't use anything you say against you in a court of law.  Defense lawyers do not have this power.  Rarely (all too rarely), a judge will compel a prosecutor to grant immunity to a defense witness. This can have perverse results. 

Let's say that you are charged with murder.  You know who really did it.  But you cannot make the person go onto the witness stand to admit it.  He would assert his privilege against self-incrimination.

If you had a prosecutor's power, you would grant him use immunity (i.e., agree that nothing he says on the witness stand will be used against him in a later legal proceeding).  A witness who has use immunity can be forced to testify.  A judge would throw the real murderer into jail for contempt if he refused to testify.

Giving prosecutors the sole power to grant immunity is bad policy. Prosecutors, even those who seek justice, are not immune from cognitive biases.  Even people who act in good faith make serious thinking errors.  Prosecutors almost always deny a defense request to grant use immunity.  Judges almost always rubber stamp this decision.

The Ninth Circuit Court of Appeals recently handed down an important decision clarifying when prosecutors must grant testimonial immunity to a defense witness:

Dwayne Edward Straub challenges his conviction and sentence for narcotics crimes and the attempted robbery and shooting of Robert Garrett in Portland, Oregon. Straub claims that the district court’s refusal to compel the prosecution to grant use immunity to defense witness Mike Baumann violated his due process rights under the Fifth Amendment. This case requires us to clarify the standard by which we determine when a district court must compel the prosecution to grant use immunity, as most recently stated in Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004).

We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution’s purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution’s selective denial of use immunity had the effect of distorting the fact-finding process. See id. at 600-01.

United States v. Straub, No. 07-30182 (9th Cir. Aug. 25, 2008) (opinion).  The Ninth Circuit held that use immunity should have been granted: 

[I]n exceptional cases, the factfinding process may be so distorted through the prosecution’s decisions to grant immunity to its own witness while denying immunity to a witness with directly contradictory testimony that the defendant’s due process right to a fair trial is violated. At Straub’s trial, eleven prosecution witnesses, many of them serious drug offenders, were granted substantial incentives or immunity to testify against him. The testimony of one such witness was crucial to the prosecution’s case for armed robbery. The defense proffered one witness who could directly contradict a statement made by the prosecution’s key witness, and if believed, would allow the jury to find that the prosecution’s witness was a perjurer and possibly the actual perpetrator of the shooting for which the defendant was charged. That one witness was denied immunity, despite the prosecution’s insistence that he was not worth prosecuting. Even absent evidence of prosecutorial intent to do so, this course of events denied Straub a fair trial.

It's obvious that the prosecution had its sights on one man.  Eleven witnesses were given immunity to convict one man?  And the prosecution would not grant the witness immunity even though the prosecutor had no intention of prosecution the witness?  What good reason did the prosecutor have for not granting immunity?  None.

Straub could be an important decision.  It will take us a couple of years to see how lower courts apply it.