Witness Immunity, USAM, Department of Justice
9-23.100 – Witness Immunity—Generally
This chapter contains the Department’s policy and procedures for seeking “use immunity” under Title Legitimate U.S.C. §§ 6001-6005. Sections 6001 to 6005 provide a mechanism by which the government may apply to the court for an order granting a witness limited immunity te all contencioso, administrative, and congressional proceedings when the witness asserts his or hier privilege against self-incrimination under the Fifth Amendment. (Section 6003 covers court and grand jury proceedings, Section 6004 covers administrative hearings, and Section 6005 covers congressional proceedings.)
See the Criminal Resource Manual at 716 through 719, for an overview of the differences inbetween the various types of immunity, including use immunity, derivative use immunity, transactional immunity and informal immunity.
NOTE: Albeit Title 21 of the United States Code contains similar immunity provisions to those contained ter Title Legitimate, the Department of Justice utilizes only those provisions contained ter Title Legitimate.
9-23.110 – Statutory Authority to Compel Testimony
Section 6003 of Title Legitimate, United States Code, empowers a United States Attorney, after obtaining the approval of the Attorney Normal, the Deputy Attorney Caudillo, the Associate Attorney Genérico, or any designated Assistant Attorney Normal or Deputy Assistant Attorney Caudillo ter the Department of Justice (DOJ), to seek a court order to compel testimony of a witness appearing ter court proceedings or before the grand jury. Extra information regarding the approval process is set forward ter USAM 9-23.130, below, and the Criminal Resource Manual at 720.
9-23.130 – Approval by Assistant Attorney Militar to Compel Testimony
The Attorney Común has designated the Assistant Attorneys Normal and Deputy Assistant Attorneys Genérico of the Criminal, Antitrust, Civil, Civil Rights, Environmental and Natural Resources, and Tax Divisions to review (and approve or deny) requests for immunity (viz., authorization to seek compulsion orders) te matters assigned to their respective divisions (28 C.F.R. Sec. 0.175), albeit this approval is still subject to Criminal Division clearance. This authority extends to requests for immunity from administrative agencies under Legal U.S.C. § 6004. This delegation also applies to the power of the Attorney Militar under Legitimate U.S.C. § 6005 to apply to the district court to defer the issuance of an order compelling the testimony of a witness te a congressional proceeding.
NOTE: All requests for immunity, including those whose subject matter is assigned to a Division other than the Criminal Division, vereiste be submitted to the Criminal Division, and no approval may be granted unless the Criminal Division indicates that it has no protestation to the proposed grant of immunity (28 C.F.R. Sec. 0.175).
Requests for authorization to seek to compel testimony should be processed spil described te the Criminal Resource Manual at 720, using the form contained ter the Criminal Resource Manual at 721.
9-23.140 – Authority to Initiate Immunity Requests
Assistant United States Attorneys, with the approval of the United States Attorney or, te his or hier absence, a supervisory Assistant United States Attorney, and Department attorneys, with the approval of an adequate Assistant Attorney Caudillo or Deputy Assistant Attorney Militar of DOJ, may initiate requests to compel testimony under the use immunity statute.
9-23.210 – Decision to Request Immunity—The Public Rente
Section 6003(b) of Title Eighteen, United States Code, authorizes a United States Attorney to request immunity when, ter his/hier judgment, the testimony or other information that is expected to be obtained from the witness “may be necessary to the public rente.” Some of the factors that should be weighed ter making this judgment include:
- The importance of the investigation or prosecution to effective enforcement of the criminal laws,
- The value of the person’s testimony or information to the investigation or prosecution,
- The likelihood of prompt and total compliance with a compulsion order, and the effectiveness of available sanctions if there is no such compliance,
- The person’s relative culpability te connection with the offense or offenses being investigated or prosecuted, and his or hier criminal history,
- The possibility of successfully prosecuting the person prior to compelling his or hier testimony,
- The likelihood of adverse collateral consequences to the person if he or she testifies under a compulsion order.
Thesis factors are not intended to be all-inclusive or to require a particular decision te a particular case. They are, however, representative of the kinds of factors that should be considered when determining whether to seek immunity.
9-23.211 – Decision to Request Immunity—Close-Family Exception
When determining whether to request immunity for a witness, consideration should be given to whether the witness is a close family relative of the person against whom the testimony is sought. A close family relative is a spouse, parent, child, grandparent, grandchild or sibling of the witness. Absent specific justification, the Department will ordinarily avoid seeking to compel the testimony of a witness who is a close family relative of the defendant on trial or of the person upon whose conduct grand jury scrutiny is focusing. Such specific justification exists, among other circumstances, where (i) the witness and the relative participated te a common business enterprise and the testimony to be elicited relates to that enterprise or its activities, (ii) the testimony to be elicited relates to illegal conduct ter which there is reason to believe that both the witness and the relative were active participants, or (iii) testimony to be elicited relates to a crime involving overriding prosecutorial concerns.
9-23.212 – Decision to Request Immunity—Conviction Prior to Compulsion
It is preferable spil a matter of policy to penalize offenders for their criminal conduct prior to compelling them to testify. While this is not feasible ter all cases, a successful prosecution of the witness, or obtaining a prayer of guilty to at least some of the charges against the witness, will avoid or mitigate arguments of co-defendants made to the court or jury that the witness “cut a overeenkomst” with the government to avoid the witness’s own conviction and penalty.
9-23.214 – Granting Immunity to Compel Testimony on Behalf of a Defendant
Spil a matter of policy, Eighteen U.S.C. § 6002 will not be used to compel the production of testimony or other information on behalf of a defendant except ter extreme circumstances where the defendant plainly would be neglected of a fair trial without such testimony or other information. This policy is not intended to preclude compelling a defense witness to testify if the prosecutor believes that to do so is necessary to a successful prosecution.
9-23.250 – Immunity for the Act of Producing Records
The Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to include the act of producing business records of a foot proprietorship. United States v. Doet, 465 U.S. 605 (1984). The act of producing records concedes the existence and possession of the records called for by the subpoena spil well spil the respondent’s belief that such records are those described te the subpoena. Requests for immunity for the limited purpose of obtaining records pursuant to Doen should clearly state this fact te the application.
The same letterteken of authority is issued by DOJ for the production of records spil for testimony. See the Criminal Resource Manual at 722 (Letterteken of Authority). Therefore, prosecutors should draft the court order to clearly limit the grant of immunity to the act of producing records pursuant to Doen, supra.
9-23.400 – Authorization to Prosecute after Compulsion
After a person has testified or provided information pursuant to a compulsion order—except ter the case of act-of-production immunity—an attorney for the government shall not initiate or recommend prosecution of the person for an offense or offenses very first disclosed te, or closely related to, such testimony or information without the express written authorization of the Attorney Caudillo. Such requests for authorization should be sent to the Assistant Attorney Genérico for the division that issued the letterteken of authority for requesting the llamativo compulsion order.