Bricker
September 28, 2011, 2:36pm
29
qazwart:
The best advice, if you think you could be in legal trouble is to keep your mouth shut and ask to contact your attorney.
You can be compelled by a court to testify, but only if the court has first granted you immunity on your testimony. For example, you were involved in a particular crime and plead the fifth in court because what you would say could incriminate you in a crime and could be used as evidence. The court could grant you immunity, and then compel you to testify.
If you are granted immunity on your testimony, you can still be charged for the crime, but your testimony cannot be used as evidence. And, no evidence based upon your testimony can be used.
For example, you said “I robbed the bank, and threw the gun in the creek”. The police can’t arrest you due to your testimony (if you were granted immunity). And, they can’t search the creek for the weapon, find it, dust it off, and then arrest you for the crime since they could only locate the gun due to your testimony.
However, if they find a friend of yours who said you told them that you threw the gun in the creek, they can then go to the creek and retrieve the gun.
Why would it have dust on it?
On a more serious note, what you’ve said is exactly correct as pertains to use immunity. There is also transactional immunity , and to quote myself from back in February 2001:
In fact, the granting of immunity removes the protections of the Fifth Amendment. Once granted immunity, the privilege against self-incrimination is gone, and a person may be compelled to testify against themselves. The reasoning is simple: the Fifth Amendment exists to prevent prosecutions based on self-incriminating testimony. Once the possibility of prosecution is gone, so is the privilege.
There are two basic varieties of immunity: use immunity and transactional immunity .
Use immunity means that any testimony you give cannot be used against you. It would still be possible to prosecute you for the crimes that you testified about, as long as no evidence used in the prosecution was derived from your testimony, directly or indirectly.
Transactional immunity is absolute immunity from prosecutions on the transactions that you testify about, no matter the source of the evidence.
The Supreme Court has held that use immunity is coterminous with Fifth Amendment protections - that is, you can be forced to testify after a grant of use immunity, and cannot “hold out” for transactional immunity. See Kastigar v. U.S. , 406 U.S. 441 (1972). See also Murphy v. Waterfront Commission of New York Harbor (compelled incriminating testimony in the context of state and federal prosecutions); Sarno v. Illinois Crime Commission; Zicarelli v. New Jersey State Commission of Investigation.
