Defense Witness Immunity (10/10/12)

It is commonplace that the prosecutors will give immunity to a prosecution witness to overcome the witness's Fifth Amendment privilege and forcing the witness to testify for the Government which, in a criminal case, means against the defendant.  But, the defense has no such tool in order to prevent a defense witness from claiming the Fifth Amendment.  Is this fair?  If not, what can be done about it.

The historical rule has been that the defense has no way to force the granting of immunity in order for the witness to have the incentive or the compulsion to testify over Fifth Amendment claims.  But there are exceptions.

In United States v. Brooks, 681 F.3d 678 (5th Cir. 2012), here, the defendants' requested immunity for a defense witness who refused to testify for the defense.  The prosecutors refused to request immunity under the statute, and the trial court refused to grant immunity.  The Fifth Circuit affirmed the trial court's refusal to grant immunity.  One of the defendants, Walton, seeks certiorari on the issue.  See  petition here.

I introduced other issues in the Brooks case in an earlier blog, A White Collar Crime Case with Issues Relevant to Tax Crimes (Federal Tax Crimes Blog 10/10/12), here.  In this blog, I focus on the defense witness immunity issue.

First, I offer the key excerpts from the Fifth Circuit decision.  Second I offer excerpts from the reasons argued for granting the petition for certiorari in Brooks.  Third, for what it is worth, I offer my discussion from my Federal Tax Crimes book.

Fifth Circuit Holding:

With regard to immunity, this Court has held that "[d]istrict [c]ourts have no inherent power to grant immunity." United States v. Follin, 979 F.2d 369, 374 (5th Cir. 1992). "A district court may not grant immunity simply because a witness has essential exculpatory evidence unavailable from other sources." Id. (citing United States v. Thevis, 665 F.2d 616, 638-41 (5th Cir. 1982)). At most, this Court has left open the possibility that immunity may be necessary to stem government abuse. See Thevis, 665 F.2d at 641. fn28 Here, however, the district court found no abuse, and Walton has failed to show error in that determination.
   fn28 Walton's citation to out-of-circuit precedent to argue that government misconduct is not a necessary prerequisite is unavailing in light of Thevis. See Thevis, 665 F.2d at 639-41 (declining to follow Gov't of Virgin Islands v. Smith, 615 F.2d 964, 974, 17 V.I. 623 (3d Cir. 1980)). Moreover, even if this Court could consider such authority, Walton fails to show immunity was justified under it. Walton fails to show that Guilbault's exclusion skewed the evidence in the government's favor. Although Guilbault could have testified that Walton never asked him to send false trades, such testimony hardly contradicts O'Toole's and Dean's testimony that Walton provided them with his positions. See United States v. Straub, 538 F.3d 1147, 1156-57 (9th Cir. 2008) (finding exculpatory evidence must "directly contradict[]" admitted evidence to warrant immunity). Further, in cross-examination of O'Toole, Walton introduced his theory that he did not always provide the traders with his positions, and that he did not ask to review their submissions to the publications. See United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (finding exculpatory evidence must not be "cumulative"). Guilbault's testimony would not have been materially more exculpatory.

Petition for Writ of Certiorari [here]

A. The Circuit Courts Are Divided. 

Defense witness immunity presents a conflict between the defendant's right to present a defense and the witness's privilege against self-incrimination. On the one hand, this Court has held that "the right to call witnesses in one's own behalf ha[s] long been recognized as essential to due process" and that "few rights are more fundamental" than this right. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). The Sixth Amendment guarantees this right as well. See Washington v. Texas, 388 U.S. 14, 19 (1968) (the "Framers of the Constitution felt it necessary specifically to provide that defendants in criminal cases should be provided the means of obtaining witnesses so that their own evidence, as well as the prosecution's, might be evaluated by the jury."). "'Whether rooted directly in the due process clause of the [Fifth] Amendment or the Compulsory Process or Confrontation Clause of the Sixth Amendment, the Constitution guarantees 'criminal defendants 'a meaningful opportunity to present a complete defense."' Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683,, 690 (1986) (citations omitted))). On the other hand, absent a grant of immunity, a witness cannot be compelled to incriminate himself, and courts are often reluctant to immunize defense witnesses on separation-of-powers grounds, believing that "the immunity decision would carry the courts into policy assessments which are the traditional domain of the executive branch." United States v. Thevis, 665 F.2d 616, 639 (5th Cir. 1982).
Perhaps no other issue of criminal procedure has more divided the lower courts than this issue. See} e.g., United States v.  Moussaoui, 382 F.3d 453, 467 (4th Cir. 2004) ("The circuits are divided with respect to the question of whether a district court can ever compel the government ... to grant immunity to a potential defense witness."); Thevis, 665 F.2d at 639 ("[T]he circuit courts ... ·have produced widely divergent opinions."); see also Autry v. McKaskle, 465 U.S. 1085, 1086 (1984) (Marshall, J, dissenting from denial of certiorari) ("The first issue-whether the state · wrongfully denied immunity to a witness necessary to petitioner's defense-implicates a conflict among the federal courts of appeals regarding the proper standards for testing such claims."). As discussed below, the Courts of Appeals have formulated at least three different approaches, as follows: 

The petition then has a chart that I don't know how to replicate in this blog, but the key chart information as to the Circuits split is (leading case Circuit bold-faced):

3rd & 8th Circuits - (i) Essential exculpatory testimony & no strong gov't interest in denying immunity and (ii) Gov't misconduct not required
6th, 7th and 9th Circuits - (i) Witness contradicts immunized gov't witness & denying immunity distorts fact finding process and (ii) Gov't misconduct not required.
2nd, 4th, 5th, 10th and 11th Circuits - (i) No right to immunity and (ii) Gov't misconduct required.

After discussing the various key authorities (a very good discussion, so I recommend looking at the petition), the petition concludes on this argument:

We recognize that granting court-ordered immunity to defense witnesses implicates separation of powers questions. But when constitutional rights conflict, only the Court can define how to balance them. The Third Circuit-limiting grants of such immunity only when testimony is clearly exculpatory, essential to the defense, and there is no strong countervailing government interest-sets appropriate limits on the exercise of this right. The Ninth Circuit also narrowly cabins defense witness immunity to preserve a defendant's right to a fair trial and avoid distorting the factfinding process. But the Fifth Circuit in effect gives no weight to the right to call witnesses. 

Finally, I offer the excerpts from my Federal Tax Crimes book for what they are worth here.