George F. Hildebrandt
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Immunity From Prosecution When Testifying

Cooperating with law enforcement officials during a criminal investigation can sometimes lead to an offer of immunity. If the person cooperating could also be charged with a crime based on the information provided to law enforcement officials, a grant of immunity can offer future protection and keep the person out of jail. However, not all grants of immunity ensure the government will not prosecute a cooperating witness for a crime related to the information given.

The prosecution usually has the power to grant immunity to a person who could testify in a criminal proceeding, either for the prosecution or for the defense, but refuses to do so in order to not incriminate him or herself. There are two types of immunity when it comes to criminal prosecutions, transactional and use immunity. Full transactional immunity is the better of the two in terms of providing the most protection, because a person who has been granted transactional immunity cannot be prosecuted for any underlying crime related to the information he or she provides the police or testimony given in court.  An accomplice to a crime can testify as a witness and admit his or her part in the crime, and not face any criminal charges if he or she has been granted full transactional immunity. In most cases, the defense attorney can use the grant of immunity to challenge a witness's credibility. Once transactional immunity is granted, the person cannot claim a Fifth Amendment privilege against self-incrimination, and may be compelled to testify as a witness.

With use immunity, the information or testimony a person gives cannot be used to prosecute him or her for the underlying crime. However, the promise not to prosecute is not permanent. If the police uncover additional evidence against the person through other independent means, such as another witness or physical evidence tying the witness to the crime, the person can be prosecuted for the crime.  If the prosecution seeks to prosecute a witness who received a grant of use immunity, the prosecution has to show that the evidence in the case was obtained for independent and reliable sources.

Note that despite both types of immunity, the prosecution can still pursue perjury charges against a witness who lies while under oath. Depending on the kind of statement a person makes under oath, perjury under New York law can be a misdemeanor or a felony charge. If charged under federal law, perjury can mean up to five years in prison.

Contact an Experienced Criminal Defense Attorney


If you have been arrested and you believe you have information that may help in another investigation, you need to consult with a criminal defense attorney before making any statements to the police. Statements you make to the police without the guarantee of immunity can be used against you in court. Contact experienced Syracuse, New York criminal defense attorney George F. Hildebrandt for a consultation.

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