Immunity
Category > Immunity
While the prosecutor is entitled to offer immunity outside of Penal Code section 1324 such offer is not enforceable until it has been accepted.The prosecutor does not have a unilateral right to grant immunity to a witness and obtain judicial enforcement of that immunity in a criminal matter where the witness declines to accept that grant.id: 12773
Immunity granted under Penal Code section 1324 is transactional and not use immunity.Where immunity is to be ordered by the court in criminal cases, the terms of that immunity must comply with the limitations set forth in Penal Code section 1324. Therefore, the trial court was correct in its finding that the order to compel testimony must be accompanied by a grant of transactional immunity as provided in the statute.id: 12766
Trial court erred in precluding all inquiry into the nature and extent of the protection the prosecution promised the witness.Prosecution witness testified that the prosecution had promised to protect his family if he testified against defendant. During cross-examination, defense counsel asked which family members the promise covered, whether the protection included relocation and whether the prosecution had paid to move the witness' family. The trial court erred in sustaining the prosecutor's objections to these questions on relevance grounds. The error was harmless where the jury was informed of the protection, the witness eventually testified his mother had been relocated and he testified to other substantial benefits flowing from the immunity.id: 12772
Defendant who was granted transactional immunity in exchange for his deposition testimony in the SVP proceeding could not be prosecuted for any crime relating to his testimony.The state initiated proceedings to declare defendant a sexually violent predator. In exchange for his deposition testimony on certain matters he received transactional immunity for those matters and "any of the matters he may testify to." The defendant may not be prosecuted for any crime relating to his deposition testimony.id: 15727
Updated 3/7/2024There was no due process or compulsory process violation where a potential witness’s lawyer advised her not to testify.Defendant sought to present the testimony of a witness (Renteria) who wanted to recant earlier inculpatory statements she made to a detective. The court appointed counsel for Renteria. Defendant argued Renteria’s subsequent refusal to testify and admit she lied when speaking with police violated his rights to due process and to present a defense. However, it was the witness’s lawyer who told her she faced misdemeanor criminal liability if she testified. Moreover, the prosecutor did not commit misconduct by refusing to grant the witness immunity. id: 26350
The trial court did not err by refusing to instruct the jury to disregard that a witness was called after the immunized witness refused to testify and the court struck her limited testimony.A witness who had received immunity answered a few preliminary questions but then refused to answer more questions despite the immunity. The court struck her limited testimony. It court then properly rejected a proposed defense instruction that the jury should disregard that Acosta had been called as a witness.id: 24729
There was no error in allowing a witness to invoke the Fifth Amendment when asked whether she gave defendant a gun, and the prosecution was not required to offer her immunity.Defense counsel asked a prosecution witness whether she gave defendant a handgun and she invoked her Fifth Amendment privilege. Defendant argued allowing the invocation violated his right of confrontation. However, the defense was able to question her about her relationship with defendant. Any hindrance to further cross-examination was not attributable to the prosecution or the court. The prosecution was not required to grant unsolicited immunity.id: 26200
The prosecution was not required to grant use immunity to a witness rather than introducing his preliminary hearing transcript where the defense did not establish that what it hoped to gain was exculpatory and essential.Defendant argued the trial court erred by admitting the prosecution witness’s preliminary hearing testimony after he invoked his right to remain silent because the defense did not have the opportunity to cross-examine the witness about a prior conviction not disclosed until after the preliminary hearing. However, the court was not required to grant immunity. The prosecution was not required to grant immunity because the defense failed to show the testimony it hoped to gain was exculpatory. The prosecution’s failure to disclose the witness’s criminal history before the preliminary hearing deprived defendant of the opportunity to cross-examine the witness about it at the preliminary hearing, but any error was harmless. The defense cannot forego cross-examination on a matter it knows about and then seek to prevent the introduction of preliminary hearing testimony at trial under Penal Code section 1291 on the grounds of lack of cross-examination at the preliminary hearing.id: 26057
The witness was not compelled to repeat his former statements in order to get a favorable sentence following his own guilty plea. Defendant argued that a witness was compelled to testify in accordance with his prior statements in order to get the benefit of the plea bargain. However, the record made clear that the witness was told he needed to tell the truth regardless of what he had previously said.id: 23937
The trial court had no authority to confer use immunity on a defense witness. Defendant was a prison gang member, convicted with two others of killing a San Quentin guard. He argued another member of the gang should have been given immunity to testify on his behalf. However, the courts have no authority to confer use immunity on witnesses. Moreover, the prosecutor did not commit misconduct by refusing to give immunity to some witnesses while offering it to others.id: 24550
A witness’s plea agreement only required that he testify truthfully.Defendant argued the witness’s testimony was tainted because his plea agreement required him to testify in a manner consistent with his statements to police, whether or not those statements were true. However, the agreement only required that the witness testify truthfully.id: 23020
The trial court did not err by refusing defendant’s request to grant a witness use immunity where the omitted testimony was cumulative and not essential to the defense. Defendant argued the trial court erred by failing to grant use immunity to Tisdale who would have testified that he had concealed the gun in his van and defendant would not have known about it. However, Tisdale’s testimony would not have presented any new evidence regarding defendant’s claim of reasonable self-defense. It would have been cumulative and nonessential to the defense. Assuming the court had the power to grant use immunity, it did not err by refusing to do so.id: 21817
The prosecutor did not commit misconduct or violate defendant’s right of confrontation by refusing to grant immunity to a witness who then became unavailable after being charged with murder resulting in the use of preliminary hearing testimony being read at trial. Defendant argued the admission of the preliminary hearing testimony of a prosecution witness following the prosecutor’s failure to grant use immunity at trial constituted prosecutorial misconduct and violated defendant’s rights to confrontation and due process. There was no confrontation clause violation by refusing to grant immunity to the witness who testified at the preliminary hearing but was subsequently charged with murder. Defendant was given an adequate opportunity to cross-examine the witness at the earlier hearing even though cell phone records defendant argued were important were not discovered until later. Moreover, the refusal to grant the witness immunity was not improper where the record did not show the prosecutor acted for the improper purpose of intentionally rendering the witness unavailable at trial. id: 21952
Codefendants’s plea agreement which only required that he testify truthfully, was not coercive.Defendant argued a portion of an accomplice’s plea agreement rendered his testimony improper and violated due process. He claimed the immunity agreement placed the witness under a strong compulsion to testify in accordance with his interview where he implicated defendant. However, because the plea agreement only required that the witness testify truthfully, there was no due process violation.id: 20446
Defendant’s failure to object to the prosecutor’s refusal to grant a witness use immunity forfeited the issue on appeal. Defendant argued the prosecutor erred in failing to offer use immunity to a witness who invoked the Fifth Amendment at trial, or in taking other steps to persuade the witness to testify. However, the issue was forfeited where defense counsel failed to raise it when the witness’s preliminary hearing testimony was offered into evidence. id: 20327
Defendant was not entitled to have the witness who was to invoke his Fifth Amendment privilege do so in front of the jury.The trial court did not err by denying a request that the witness who would invoke his Fifth Amendment privilege against self-incrimination be required to do so in front of the jury.id: 20326
Court properly refused to extend immunity to protect a defendant who wished to testify in rebuttal to an uncharged crime.Defendant argued the trial court erred in refusing to grant him immunity against the use of his testimony to the circumstances surrounding an uncharged killing. However, immunity should not be extended to protect a defendant who wishes to testify in rebuttal to other crimes evidence which may become the basis of a subsequent prosecution.id: 12760
Immunity agreement requiring truthful testimony in accordance with prior statements was not coercive.Defendant argued the immunity agreement between the
prosecutor and a key witness was coercive and obligated the witness to testify in strict accordance with the prior statements he gave police. However, the grant of immunity, by its terms, was based on the witness's truthful testimony, which the witness represented would be in accordance with his prior statements.id: 19055
Defendant forfeited his claim regarding the admission of coerced testimony where his only objection at trial was based on hearsay.Defendant argued the admission of coerced testimony violated his right to due process. However, at trial, defendant objected to the admission of the testimony on grounds of hearsay rather than coercion. The issue of coerced testimony was therefore not reviewable. Moreover, even though the witness was granted transactional immunity to testify against the defendant, the agreement did not require that her trial testimony conform to the statements she gave police.id: 18681
Neither the prosecutor nor the court erred in failing to grant immunity to the defense witness who invoked her Fifth Amendment rights.A witness who could rebut damaging testimony from another witness invoked her Fifth Amendment rights. The prosecutor did not commit misconduct by failing to offer the witness immunity. Moreover, while the trial court has the inherent authority to grant immunity, the refusal to grant it did not violate defendant's federal constitutional rights since the witness's testimony would have been cumulative of other evidence.id: 18627
The court did not err in denying defendant's motion for court-ordered immunity absent evidence that the prosecutor intentionally distorted the fact-finding process.Defendant argued the trial court erred in denying his motion (made during trial) seeking immunity for a potential witness. However, defendant failed to make the required showing that the prosecutor interfered with his right to present exculpatory evidence and to ensure his right to a fair trial.id: 17980
Witness' immunity only covered prior rather that present acts of perjury.Defendant argued admission of a prosecution witness' perjured testimony under an immunity agreement covering perjury at defendant's trial violated his due process and confrontation rights as well as his right to a capital trial conducted with reliable and admissible evidence. However, the immunity agreement at issue was construed to apply to the witness' prior acts of perjury, as disclosed by his present testimony. It did not permit him the option of committing future perjury during defendant's trial. Assuming the agreement was ambiguous in this regard, defendant failed to object or seek clarification. <i>People v. </i>id: 15971
There was no evidence that the prosecutor improperly withheld the terms of the witness' grant of immunity.Witness testified under a grant of immunity that defendant told her he was the one who shot the victim during the robbery, and that the shooting was an accident. He argued she should not have been allowed to testify without a prior hearing as to her competency as a witness and that the prosecution improperly withheld the terms of her immunity. However, nothing suggests the terms of the immunity were withheld from the defense. No conditions were attached to the grant, and no reasons appeared to question the witness' competence to testify.id: 12770
Trial court did not err in refusing to grant use immunity to a defense witness who had invoked his privilege not to testify.Defendant argued the trial court violated defendant's due process rights by denying judicial use immunity to an exculpatory defense witness who had invoked his Fifth Amendment privilege not to testify. However, no California case has ever granted such immunity to a defense witness and the instant court was unwilling to do so.id: 12771
Witness' immunity for statements made to a probation officer may not be asserted by defendant.Defense witness was impeached with statements he had made earlier to his probation officer. While such statements could not be introduced against the witness, the privilege did not extend to protect defendant who was on trial.id: 12774
Court properly allowed defendant to be cross-examined with statements she made to psychologists in anticipation of a juvenile court fitness hearing.Defendant argued the court committed reversible error in allowing her to be cross-examined with statements she made to mental health professional in anticipation of a juvenile court fitness hearing. She argued the doctrine of use immunity should apply to preclude testimony given at a juvenile court fitness hearing from being used, both as substantive evidence and impeachment, in a subsequent criminal trial. The court properly excluded any statements the minor made to the probation officer. However, the statements made to the psychologists were neither judicially nor legislatively compelled. Although the minor's testimony in the form of statements voluntarily made to psychologists could not later be used as substantive evidence of her guilt at trial, they were admissible once she elected to testify inconsistently with those prior statements.id: 12742
Court does not have the inherent power to confer use immunity to a defense witness.Defendant argued that a defendant in a criminal action should be entitled to request that the court grant use immunity to a defense witness who has knowledge of essential, exculpatory evidence. However, the courts have uniformly rejected the notion that a trial court has the inherent power to confer use immunity upon a witness called by the defense. Moreover, defendant failed to demonstrate that the proffered testimony was clearly exculpatory and essential to his defense.id: 12759
Defendant failed to show the publication of alleged unpublished information possessed by the reporter would have materially assisted the defense and defeated the reporter's claim of immunity under the California Shield Law.A newspaper reporter interviewed defendant who was charged with multiple murders and faced the death penalty. During the interview defendant admitted to the killings and his admission was the focus of the newspaper article. The reporter was called as a prosecution witness and defense counsel sought the disclosure of unpublished information obtained from defendant. Defendant argued application of the California Shield Law to protect the unpublished information in the reporter's possession denied him the privilege against self-incrimination, the right to confrontation and the right to introduce the entire conversation under Evidence Code section 356. However, once the reporter met the Shield Law requirements defendant was required to show that nondisclosure would violate his right to a fair trial. Defendant failed to show publication of the unpublished interview information would have materially assisted the defense and defeated the claim of immunity under the Shield Law.id: 12761
Defendant has no standing to contest the grant of immunity to a witness.Appellant argued the trial court erred by granting witness Phillip Thompson use immunity because in California only transactional immunity can be granted. However, a defendant has no standing to argue the testimony of an immunized witness is the product of improper grants of immunity. The privilege against self-incrimination is personal to the person who invokes it and immunity affects only that person.id: 12762
Defendant's testimony before the Department of Corporations was not compelled by court order and therefore, he was not entitled to transactional immunity.Defendant was charged with several securities violations. He moved for dismissal of the charges on the ground that he was entitled to immunity from prosecution pursuant to Corporations Code section 25531, subd. (e) because he was compelled to give incriminating testimony at an examination before the Department of Corporations. The trial court erred in granting the motion to dismiss because the corporation department commissioner lacked legal authority to compel testimony and thereby activate the statutory immunity, without obtaining a court order.id: 12763
District Attorney did not improperly use an immunized statement for the purpose of persuading the victim to testify.Defendant, a male police officer, was charged with sexually assaulting a female officer. The District Attorney conveyed information to the victim regarding the defendant's immunized statement. However, the victim's testimony amply supported the trial court's finding that defendant's statement did not motivate her to testify against him, and that she would have testified in the absence of knowledge of his statement. Therefore, the evidence did not support the defendant's contention that the district attorney had improperly received and used the immunized statement.id: 12764
Failure to grant immunity to a defense witness who exercised his privilege against self-incrimination was not erroneous where defendant made no offer of proof as to the witness' testimony.Defendant argued the trial court erred in failing to grant judicial immunity to a defense witness who, after conferring with counsel, informed the court that he would exercise his privilege against self-incrimination unless he received immunity. However, because the defense made no offer of proof as to the witness' testimony, the record provided no basis for determining the testimony was either clearly exculpatory or essential to the defense. Defendant therefore failed to show the failure to grant immunity resulted in the denial of the right to compulsory process and a fair trial.id: 12765
Prosecutor was not required to grant immunity to the witness on the ground that the testimony could be favorable to the defense.Defendant argued that by not granting immunity to the witness (defendant's brother), and thereby removing the self-incrimination barrier to the witness' testimony at trial, the prosecution violated defendant's constitutional right of confrontation and denied him due process of law. However, there is no authority for the proposition that a prosecutor must request or the trial court must grant immunity to a witness on the ground that the witness' testimony could be favorable to the defense. Moreover, defendant failed to demonstrate the existence of circumstances in which a trial court might be required to confer use immunity to ensure a fair trial.id: 12767
Prosecutor's and witness' knowledge of the immunized statement did not necessarily taint the criminal proceedings.Defendant, a police officer, was charged with sexual battery. During an internal investigation conducted by the police department, defendant made a confidential statement under a grant of use immunity. The trial court erred in finding the district attorney's and victim's knowledge of the statement had irreparably tainted the criminal proceedings. In order for there to be a violation of a use immunity agreement there must be a prohibited use of the statement as opposed to knowledge of its existence. Once the prohibited use is established, the prosecutor must then demonstrate that the evidence was derived from a source independent of the defendant's statement. Good discussion of use immunity.id: 12768
The immunity granted to appellant pursuant to Penal Code section 1324 did not cover his conviction under appeal.Appellant was already convicted and sentenced when he was called to testify at the trial of his co-participants. He argued that since he was given immunity from further prosecution for the offenses which are on appeal, his appeal is moot and the appellate court has jurisdiction only to remand the appeal with directions to the trial court to dismiss the charges. However, the transactional immunity granted to appellant pursuant to section 1324 did not cover his conviction in the instant case.id: 12769
Court did not violate the right to present a defense for failing to grant witnesses immunity for drug offenses where the witnesses may have faced liability for the murders.Defendant claimed two defense witnesses would have testified as to his state of mind at the time of the killings but decided to invoke their privilege against self-incrimination. He argued the trial court should have extended the witnesses judicial immunity for any potential drug offenses in order to vindicate defendant's right to present a defense. However, the record showed immunity for drug offenses would not have sufficed to procure the testimony of the witnesses who faced a danger the testimony might lead to charges of accomplice liability for the murders of which defendant was accused. It was unlikely immunity would be granted for one potentially involved in a double murder.id: 12741
Telling suspects they might be prosecuted if they refused to cooperate with the police investigation did not amount to improper coercion.Defendant argued that two witnesses were told by police that they might be prosecuted as accessories if they refused to cooperate with the investigation. He claimed their subsequent statements were improperly coerced by the threat of prosecution. However, there is nothing improper in confronting a suspect with the predicament he or she is in, or with an offer to refrain from prosecuting the suspect if he or she is willing to cooperate with the police investigation.id: 9850
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245