Transactional Immunity for Witnesses

Imagine you're a computer specialist working for a high-profile presidential candidate. The candidate has been under investigation by the Federal Bureau of Investigations (FBI) and House Oversight Committee concerning the handling of classified information on her personal email account when she was acting Secretary of State. As the computer specialist, you proceeded to delete the emails despite an order from Congress directing you to preserve them. Now Congress wants your testimony to find out why you violated an order and who may have directed you to do it. Do you agree to testify?

Good question, and one faced by Paul Combetta, the specialist working with then-presidential candidate Hillary Clinton in 2016 during her obstruction of justice investigation. In that case, Combetta was offered immunity by the Justice Department in exchange for his testimony. But what does that mean exactly? Let’s explore the concept of immunity in a criminal case and see how it works under the law.

Here, you’ll find a summary look at transactional immunity for witnesses, including the differences between immunity and the right against self-incrimination and where to go to find an experienced attorney if you're being investigated or charged with a criminal offense. Remember, you should always speak with an attorney before accepting any grants or offers of immunity.

Immunity and the Right Against Self Incrimination

You may be familiar with the right against self-incrimination. We often see it invoked by a person in a crime show or other legal drama. Grounded in the Fifth Amendment to the U.S. Constitution, it allows a witness to refuse to answer questions that would lead to criminal liability. We’ve seen dramatic displays of “taking the Fifth” in sensationalized criminal trials, like that against O.J. Simpson. One of the police investigators in that case refused to answer questions on the witness stand when asked about planting evidence at the crime scene by uttering that famous line, “I wish to assert my Fifth Amendment privilege.”

While this is one aspect of evidence and testimony, another is a grant of immunity. Even if a person asserts his or her right to refuse to testify, a prosecutor can offer a grant of immunity in exchange for that testimony. This can happen in a number of settings including:

  • A court or grand jury of the United States
  • An agency of the United States
  • Either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House (Think House Select Committee on Benghazi)

Who Grants Immunity?

A federal or state prosecutor decides who will receive immunity, which can be granted for a variety of crimes from something as minor as theft to the more serious crime of murder. The prosecutor can do it by obtaining a formal court order, by writing a letter, or by making an oral commitment. When used correctly, it's a useful tool to help aide investigations and get information that a witness wouldn’t otherwise be willing to provide for fear of prosecution.

Why would a prosecutor do this in the first place? Think about the concept of “getting the biggest fish.” If you want to get to the mastermind of a crime, you often need witnesses. Why not get the mastermind’s associates to testify in exchange for immunity from prosecution for more minor crimes committed by the associates?

What Is Transactional Immunity?

There are two different types of immunity that a prosecutor can offer to a witness: "transactional immunity" (also known as “total immunity”) and "use immunity", i.e. immunity that prevents the prosecution from using the witness's own testimony or any evidence derived from the testimony against the witness.

Here, we'll discuss transactional immunity. Transactional immunity is the most complete immunity that can be offered to a witness. Also known as “blanket immunity,” it protects a person from prosecution of the crime involved.

Let’s say Sally sold drugs in a certain neighborhood. While the crime of selling narcotics is serious, law enforcement might decide they would rather arrest Charlie Kingpin, the drug supplier, not Sally the small-time dealer. If Sally is offered transactional immunity from the district attorney for her participation in drug sales which helps prosecute Charlie Kingpin, Sally can’t be charged with a crime stemming from her immunized testimony.

Limitations on Transactional Immunity

While transactional immunity is the broadest type of immunity, it doesn’t prevent prosecution for criminal activities that are unrelated to something discussed in the immunized testimony. So if it comes out during testimony that Sally committed a robbery while dealing drugs for Charlie Kingpin, she likely won’t receive protection for that crime.

Transactional Immunity for Witnesses: Additional Resources

Have Questions About Transactional Immunity? Get Help From a Lawyer

If you're being investigated for a state or federal crime and have been offered immunity by the prosecution, you'll want to speak with a legal professional who understands the rules of evidence and how they impact your rights. When put into practice, the concept of immunity and the right against self-incrimination can get confusing. If you're looking for legal guidance, you can find a skilled criminal defense attorney in your area now that can help you understand the law. 

Next Steps

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