Resolving the Circuit Split on Defense Witness Immunity: How the Prosecutorial Misconduct Test Has Failed Defendants and What the Supreme Court Should Do about It*
Lipanovich, Nathaniel, Texas Law Review
This Note discusses the near impossibility of obtaining immunity for defense witnesses in federal criminal cases. It provides a statistical overview suggesting that the "prosecutorial misconduct" standard used in ten of the twelve circuits fails to provide adequate protection for the accused. The Note then analyzes arguments on both sides of the matter before concluding that the Supreme Court, yet to rule on the issue, should expand a defendant's right to obtain immunity for essential witnesses.
One of the earliest cases to explore defense witness immunity, Earl v. United States,1 was written by Judge (and later Chief Justice) Warren Burger when he served on the U.S. Court of Appeals for the District of Columbia. Earl was convicted of selling heroin to an undercover policeman.2 During the trial Earl sought to prove his innocence via the testimony of Frank Scott, but when called to the stand Scott invoked the Fifth Amendment.3 Scott, also involved in the heroin sale, would have testified that Earl was not present and that a man resembling Earl was at the sale.4 This testimony would have corroborated the defense theory of mistaken identity.5 Ultimately the trial judge denied Earl's request to immunize Scott, and on appeal, Earl's conviction was sustained. 6 Judge Burger explained that under the circumstances a court could not grant immunity on its own without authorization from Congress.7
The relevant statute for understanding defense witness immunity is the use-immunity statute, 18 U.S.C. § 6002.8 This statute gives a prosecutor broad discretion to grant immunity to a witness, but provides no corresponding right to a defendant.9 Recognizing this imbalance, courts have fashioned two distinct approaches to the issue: (1) directly granting judicial immunity10 or (2) indirectly requiring immunity by threatening to dismiss the case if the prosecutor refuses to grant immunity.11
This Note explores the need to expand defendants' rights in federal criminal cases to obtain immunity for their witnesses.12 Part II provides an overview of the current state of defense witness immunity and identifies the split among the courts of appeals. It offers an empirical overview of all the cases on the topic, and details the approaches employed by the circuit courts. Part III highlights the arguments in favor of defense witness immunity, and Part IV shows the weaknesses inherent in the arguments against immunity for defense witnesses. Part V argues that the Supreme Court should adopt the Ninth Circuit's test for defense witness immunity because that test will best protect a defendant's due process rights. The Note concludes that the majority approach to defense witness immunity is inadequate and Supreme Court action is necessary to protect defendants' rights.
II. The Current State of Defense Witness Immunity
Defense witness immunity is a subject that continues to divide both state and federal courts. In the last five years these divisions have only grown greater as jurisdictions such as the Ninth Circuit and the State of New Mexico have expanded a judge's ability to grant immunity to defense witnesses.13 This Part of the Note provides an overview of the current state of federal law.
A. A Statistical Review of Defense Witness Immunity Cases
Before discussing individual cases, a broad summary of how defendants fare when they seek an immunity grant for a witness is provided in Table A.14 Table A shows the success rate of defendants in obtaining use immunity for defense witnesses.
The first number in each box is how many requests for immunity were granted, and the second number is how many requests were made. Thus, at the district court level, one hundred eleven requests were made, and only four were granted (3.6%). Noticeably, in nine of the twelve circuits, defense witness immunity has never been granted. Overall, there were three hundred thirty-five cases in which defense witness immunity was at issue, and only twelve times was the request granted by the court. …