Suppose an accountant is offered total immunity from prosecution in exchange for testimony that his bosses were committing fraud. If that accountant says, “oh and by the way, I also committed a murder”, can he be prosecuted for the murder?
Just wondering how these “immunity” deals are usually written. Thanks.
Maybe.
I know it sounds like begging the question, but it all depends on how the deal is written.
Immunity deals – agreements reached with the prosecution – are analyzed and enforced through basic contract law principles. They will typically apply only to the circumstances surrounding the crime being investigated. So if your acciountant said, “My secretary also found out about the fraud, and on my boss’ orders, I killed her,” he could conceivably be safe from prosecution, assuming the immunity agreement was written broadly enough. That would mean, of course, that he mapped out the strategy ahead of time with his counsel, and the prosecution had a major blind spot as far as suspecting the accountant of that crime beforehand.
No immunity agreement in the world would realistically include every single crime ever committed, so if the accountant finished explaining the corporate fraud and then continued in the next breath, “Oh, and by the way, in 1972 I raped and murdered a woman on a hiking trail near Skyline Drive,” then it’s very unlikely that the immunity would extend to that crime.
There’s another broad category of immunity worth discussing: testimonial immunity. This arises not from agreement with the prosecution, but with a witness being compelled to testify in derogation of his Fifth Amendment rights. Normally, the Fifth Amendment prevents a person from being compelled to testify when his testimony could incriminate him. But if a judge grants immunity, the protection no longer applies. There are two types of immunity in this context: use immunity and transactional immunity. Use immunity is sufficient to preserve your Fifth Amendment rights; it simply means that your testimony may not be used against you. If the government can develop independent evidence of your crime, you may still be prosecuted. Transactional immunity means that you may not be prosecuted for any transaction about which you testify, period.
Thanks – this is helpful. Two things I wanted to ask in response. First:
Does it matter that one of the entities in the contract is the government? The person granted immunity isn’t making a contract with a person or a corporation --it’s with a government.
My second (more general) question is whether it’s plausible that someone could be granted immunity from prosecution for one crime, and then when he testifies he is protected from prosecution from other crimes committed during the commission of the first. For example, suppose an accountant commits fraud, receives immunity, and then during his testimony he admits he threatened the life of someone who was going to turn him in. Is it reasonable to believe that a prosecutor might have written a deal which inadvertently allowed this, or is it something no prosecutor would ever be stupid enough to do?
Thanks.
No. It’s not actually a contract, though – what I said was: …are analyzed and enforced through basic contract law principles. So for the purpose of resolving meanings and disputes, the contracts model is used.
It’s unlikely that a prosecutor would leave a hole like this open, but by no means impossible. As with everything other occupation in the world, there will be one or two amazingly stupid people involved SOMEWHERE in the mix.
Some interesting facts about immunity in New York:
“Under New York law, a witness who testifies before a grand jury automatically receives immunity (subject to certain exections)…Another important difference is that the immunity granted under New York law is transactional immunity.”
http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/05/new_york_begins.html
An NYU law professor says: “New York’s grand jury immunity also applies to true but unexpected testimony. For example, if a witness before a grand jury investigating gambling were asked, “When was the last time you saw John Doe?” and he answered, “When I killed him,” he would receive immunity for the homicide.”
Fascinating stuff. Thanks for the info.
Yes. Although I’m no expert on New York, I have heard that people who are the targets of grand jury investigations must execute a waiver of immunity before they can testify, for precisely that reason.
In Canada, they let sadistic serial rapists get away with murder.
Karla Homolka’s sweethart deal. (See last four paragraphs)
I’m sure these deals do some good some of the time. But I have to also admire the Singaporean approach that they recently used on that unwilling drug mule they hung. “Thanks for the info on the drug dealers that sent you to us. But you’ve still got a date with a rope tomorrow.” When lawyers found the video tapes her deal should have been shredded right then and there.
12 years after Karla’s crimes, she is a free citizen with no restrictions on what she can do. Right now she’s probably at a Tim Horton’s in Quebec drinking an iced cap and laughing her ass off at our “justice” system.