I know that in the US, trial in two jurisdictions for the same crime is not double jeopardy. So I have a friend on trial in a state court. The prosecution wants me to testify but I plead the Fifth. The State gives me blanket immunity taking away my right to the Fifth since now there is no self-imcrimination. Compelled to testify I reveal all about out moonshine business.
So now I get arrested by the Feds because of my testimony. Would they be allowed to used that testimony against me? Is there any “fruit of the poisoned tree” at work if they find evidence based on my testemony I was compelled to give?
The SUpreme ruled on this as recently as 2000 in US v Hubbell 530 US 27, citing to Murphy v Waterfront Commission 378 US 52 (over-ruled on other grounds) :
\ ‘Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.’ [Id.,] at 79 n. 18.
“This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”
An example of where this affected a famous case was Ollie North and Iran-Contra. He was given immunity to testify in front of Congress. Admitted breaking the law. Was later convicted by the testimony of others (but not his). Appealed and the conviction was overturned on the grounds that some of the other people’s testimony might have been influenced by his. (The ACLU was a key player in this. Nice to know they defend anyone, regardless of politics.)
Of course the Special Prosecutor’s office was really, really unhappy about the Congressional immunity deal since they pretty much saw this coming.
It’s one of those things that gets messy really fast.
It seems to me that it would be relatively simple to “reverse engineer” a way to get at the evidence from a legitimate source. From the immunized testimony, you have a road map of where you need to go. Now all you have to do is make up an alternate route to get there.
I’m no lawyer, but I suspect the idea of reverse-engineering from an end-state based on prohibited testimony could easily qualify as fruit of the tree. For instance, if I’m immunized and testify I buried the body in the garden, and the Feds try me on the basis they found the body in the garden, it can be suspected they used my immunized testimony to lead me to the garden, and they’d have to prove to the judge’s satisfaction that my testimony had nothing to do with it… to prove a path to the evidence completely independent of the forbidden testimony.
Right, so they would concoct a story about how their investigative techniques would have led to the town, then the block, then the house, then a neighbor who saw suspicious digging, and then the body. The inevitable discovery rule.
And they can actually make it up out of whole cloth because that is what they are being asked to do: Find another way that it COULD have happened.
If they’re going to outright lie and fabricate evidence, then of course you will be convicted if the court believes them. Interviewing the neighbour to ask about digging once you know where the body is - seems to me that’s pretty much the definition of fruit of the poisoned tree. Fabricating evidence - if discovered - is the fast track to the rare but legendary “dismissed on a technicality”.
That’s my point: they do not have to lie and fabricate evidence. They are being asked if there is another way they COULD have found the body in the garden without the immunized testimony. They don’t have to actually do it, just tell a tale of how it could have been done.
I think this depends on exactly why the original evidence is inadmissible and particularly when they knew it was. If the detectives got hold of some evidence that they (reasonably) thought was good, based their investigation on it, and only after that had a judge rule that the evidence was inadmissible, then the prosecution can indeed say ‘well, we would have succeeded in the investigation anyway even without the inadmissible evidence, because we would obviously have done this and this and found that’ (of course the judge has to buy that story). The idea is that the detectives shouldn’t be punished too much for getting evidence they thought was admissible (and we don’t want incentives for subjects of investigation to try and deliberately provide inadmissible evidence).
But this only works for stuff that happened before the detectives knew the original evidence was inadmissible. In the case of immunized testimony, the detectives know right away that the testimony can’t be used. So they have to avoid using it. They can’t say 'Well, if we pull phone records and talk to the neighbor, we would find the body, so we’ll just go dig it up right now", they have to go and pull the phone records and produce a lead that gives them a reason to talk to the neighbor and otherwise find the body without using the testimony. And then, possibly, convince a judge that they really didn’t use the testimony even as a guide to where they were going.
the point is not “could you…?” The question is “Would you have found this evidence without the testimony?” Unless you interviewd the whole south side of the city would you have hit on the right person? How many false leads? how many man-hours to sort that out? Typical for this type of investigation? Did the person actually call in the complaint unsolicited?
they can’t “concoct a story that leads…”. They have to show that untainted, someone figured it out. With a body buried (if you even know that) in a few dozen square miles, good luck! Once the police tape goes up and the backhoe and morgue wagon show up, it’s too late for the neighbour to say “I was thinking of calling you”. She would have had to do so already. Now that she knows, too late - poisoned. If they are lucky, they have a call from her on the 911 tape from before the dig; plus they don’t have a record of the call being filed under “another crackpot - fuggedaboudit”.
I’m betting the judge is going to be very skeptical; that pre-existing evidence is all that will be acceptable.