Immunity and pleading the fifth

I saw where the Senate committee investigating the Marc Rich pardon is trying to get teh justice dept. to give Denise Rich immunity since she took the fifth.

If you are granted immunity from prosecution do you have to testify? Can you still refuse?

IANAL, but generally, you’re offered immunity in exchange for your testimony. If you were to back out from doing so, the offer would be recinded.

You can never be compelled to testify against yourself. Often people are granted immunity for spilling the beans on other people, which may also incriminate themselves.

Or sometimes they just want to tell their story.

That’s not right, freido. In fact, the whole idea behind an immunity grant is that any testimony would be, by definition, no longer self-incriminating – ergo, testimony that normally would not be required can be compelled.

The situation gets trickier when it is Congress granting the immunity, as other jurisdictions can sometimes try to make use of the testimony.


Please don’t issue blanket statements like “You can never ben compelled to testify against yourself,” especially when they are flat out wrong. If you don’t know, at the very least, qualify your statement with, "As far as I know… " or “This is a guess, but…”

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.

Fighting ignorance means holding off on posting a fact as an answer in GQ unless you’re sure of that fact.

  • Rick