ARTICLE
Field_Note_12_Final .docx (Do Not Delete)6/8/2015 2:02 PM258New
England Law Reviewv. 49 | 231Field_Note_12_Final .docx (Do Not
Delete)6/8/2015 2:02 PM2015Circuit Split on Defense-Witness
Immunity259Defense Witnesses Need Immunity Too: Why the Supreme
Court Should Adopt the Ninth Circuits Approach to Defense-Witness
ImmunityAlison M. Field[footnoteRef:1]* [1: * Candidate for Juris
Doctor, New England Law | Boston (2015). B.A., Psychology, Indiana
University (2012). I would like to thank the New England Law Review
staff for their hard work, my friends and family for encouraging
me, and, finally, DMF for providing me with the inspiration for the
article. ]
Abstract[W]here two eyewitnesses tell conflicting stories, and
only the witness testifying for the government is granted immunity,
the defendant would be denied any semblance of a fair trial. With
all the money, power, and witnesses at its disposal, it is hard to
see how the government ever loses a case. In order to reconcile the
power imbalance between the government and the defendant, as well
as to protect the defendants constitutional rights, Congress has
developed the use-immunity statute, 18 U.S.C. 6002. Still, in
criminal cases, U.S. courts are reluctant to grant immunity to
defense witnesses. Prosecutors also have the power to provide
immunity to defense witnesses, but not surprisingly, they rarely
ever exercise that power. Thus, defendants are prevented from
presenting a complete defense when a possible witnesswith
exculpatory evidence or statements that could impeach the
prosecutions witnessis unavailable (primarily due to asserting the
Fifth Amendment privilege).This Note argues that courts should have
broad discretion in providing defense-witness immunity.
Accordingly, the Supreme Court, which has not ruled on the issue of
defense-witness immunity, should adopt the Ninth Circuits approach.
The Ninth Circuit approach considers: (1) whether the testimony is
relevant; and (2) whether the prosecutor caused the defense witness
to invoke his Fifth Amendment privilege, or denied immunity to a
defense witness whose testimony would contradict that of a
government witness who was granted immunity.IntroductionPicture
this scenario: you are charged with committing a crime and the
government puts a witness on the stand who provides essential
testimony against you.[footnoteRef:2] Your attorney attempts to
present a witness who can testify on your behalf and rebut the
government witnesss testimony, but your witness refuses to
testify.[footnoteRef:3] Your witness is afraid that testifying for
you will implicate him in the crimes that you are charged with, and
he is unwilling to cooperate.[footnoteRef:4] As a result the jury
hears only one side of the storythe governments.[footnoteRef:5] [2:
See United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir.
1991) (discussing the scenario where a defendant witness is not
granted immunity, even though the witnesss testimony directly
conflicts with the immunized-government witnesss testimony).] [3:
See id. at 108586.] [4: See id.] [5: See id. at 1087.]
[W]here two eyewitnesses tell conflicting stories, and only the
witness testifying for the government is granted immunity, the
defendant would be denied any semblance of a fair
trial.[footnoteRef:6] With all the money, power, and witnesses at
its disposal, it is hard to see how the government ever loses a
case.[footnoteRef:7] In order to reconcile the power imbalance
between the government and the defendant, as well as to protect the
defendants constitutional rights, Congress developed the
use-immunity statute, 18 U.S.C. 6002.[footnoteRef:8] Still, in
criminal cases, courts across the United States are reluctant to
grant immunity to defense witnesses.[footnoteRef:9] Prosecutors
also have the power to provide immunity to defense witnesses, but
not surprisingly, they rarely ever exercise that
power.[footnoteRef:10] Thus, defendants are prevented from
presenting a complete defense when a possible witnesswith
exculpatory evidence or statements that could impeach the
prosecutions witnessis unavailable.[footnoteRef:11] [6: Id.
(quotingUnited States v. Brutzman, 731 F.2d 1449, 1452 (9th Cir.
1984)).] [7: See Hon. H. Lloyd King, Jr., Why Prosecutors are
Permitted to Offer Witness Inducements: A Matter of Constitutional
Authority, 29 Stetson L. Rev. 155, 175 (1999) (examining the lack
of power defense counsel possess in relation to the power afforded
to government attorneys).] [8: See 18 U.S.C. 6002 (2012).] [9: See
Nathaniel Lipanovich, Resolving the Circuit Split on Defense
Witness Immunity: How the Prosecutorial Misconduct Test Has Failed
Defendants and What the Supreme Court Should Do About It, 91 Tex.
L. Rev. 175, 178 (2012).] [10: See Julie R. OSullivan, Federal
White Collar Crime: Cases and Materials 87478 (4th ed. 2009).] [11:
Unavailability is most often due to a witness asserting the Fifth
Amendment privilege. See United States v. Straub, 538 F.3d 1147,
115658 (9th Cir. 2008) (leaving the defendant with no choice but to
accept the trial courts decision not to grant use immunity).]
This Note argues that courts should have broader discretion in
providing defense-witness immunity. Accordingly, the Supreme Court,
which has not ruled on the issue of defense-witness immunity,
should adopt the Ninth Circuits approach. The Ninth Circuit
approach considers: (1) whether the testimony is relevant, and (2)
whether the prosecutor caused the defense witness to invoke the
Fifth Amendment privilege or denied immunity to a defense witness
whose testimony would contradict that of the government witness who
was granted immunity.[footnoteRef:12] [12: Id. at 1162.]
Part I addresses the importance of defense-witness immunity
statutes and the proponents arguments for advancing these statutes.
Part II introduces the three different approaches the circuit
courts have taken regarding a trial courts ability to grant
defense-witness immunity. Part III analyzes and discounts the Third
Circuit approach to defense-witness immunity. Part IV discusses and
rejects the Second Circuit defense-witness immunity approach. Part
V argues that the Supreme Court should adopt the Ninth Circuit
defense-witness immunity approach. This Note concludes that the
Supreme Court should adopt the Ninth Circuit approach to
defense-witness immunity because it is more
lenient,[footnoteRef:13] focuses on the effect of the prosecutors
actions,[footnoteRef:14] and balances grants of immunity for
prosecutors and defendants.[footnoteRef:15] [13: Compare id.
(broadening the prosecutorial misconduct definition to include
conduct that has the effect of distorting the fact-finding
process), with United States v. Ebbers, 458 F.3d 110, 119 (2d Cir.
2006) (limiting the prosecutorial misconduct definition only to
conduct that deliberately distorts the fact-finding process).] [14:
Compare Straub, 538 F.3d at 1162 (holding that prosecutorial
misconduct can be proven with actions that have the effect of
distorting the fact-finding process), with Ebbers, 458 F.3d at 119
(requiring that prosecutorial misconduct be shown by deliberate
actions that distort the fact-finding process).] [15: See Straub,
538 F.3d at 115657 (allowing courts to grant immunity for defense
witnesses, instead of making the immunity grants dependent on the
prosecutors decisions).]
I.BackgroundA.The Importance of the Unsettled Area of
Defense-Witness Immunity StatutesIn 1956, the Supreme Court
recognized the importance of immunity statutes and declared that
statutes granting immunity ha[ve] become part of our constitutional
fabric.[footnoteRef:16] Every state has enacted a use-immunity
statute, and Congress has passed over forty immunity statutes on
the federal level.[footnoteRef:17] The use-immunity statute, 18
U.S.C. 6002,[footnoteRef:18] provides federal prosecutors with the
ability to grant witnesses immunity, but does not grant defendants
equivalent power.[footnoteRef:19] Thus, courts have attempted to
resolve this inequity in two ways, by either: (1) directly granting
witnesses immunity;[footnoteRef:20] or (2) threatening to dismiss
the prosecutions case if it does not provide immunity for defense
witnesses.[footnoteRef:21] As state and federal courts attempt to
reconcile this unsettled area of law, the division in approaches
has only increased.[footnoteRef:22] However, the Supreme Court has
yet to decide when a defendant is entitled to obtain immunity for
witnesses.[footnoteRef:23] [16: Ullmann v. United States, 350 U.S.
422, 438 (1956).] [17: Murphy v. Waterfront Commn, 378 U.S. 52, 94
(1964)(White, J., concurring), overruled in part on other grounds
byUnited States v. Balsys, 524 U.S. 666 (1998).] [18: 18 U.S.C.
6002 (2012) (providing that an immune witnesss testimony will not
be used against the witness in a future prosecution).] [19: See
id.] [20: SeeGovt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir.
1980)(explaining that the effective defense theory requires
defense-witness immunity when it is found that a potential defense
witness can offer testimony which is clearly exculpatory and
essential to the defense case and when the government has no strong
interest in withholding use immunity). However, only the Third
Circuit has taken this approach. See33A Federal Procedure: Lawyers
Edition 80:301 (2014) [hereinafter Federal Procedure].] [21: See,
e.g.,United States v. Burke, 425 F.3d 400, 411 (7th Cir. 2005)([A]
federal court cannot order the government to immunize a defense
witness, [but] courts can dismiss an indictment where the
prosecutors refusal to grant immunity has violated the defendants
right to due process.) (citingUnited States v. Herrera-Medina, 853
F.2d 564, 568 (7th Cir. 1988)).] [22: SeeUnited States v. Straub,
538 F.3d 1147, 1166 (9th Cir. 2008) (urging judgment of acquittal
unless the prosecution granted use immunity to the defense
witness);State v. Belanger, 210 P.3d 783, 79293 (N.M.
2009)(creating a rule allowing district courts to grant use
immunity with or without the prosecutors agreement).] [23: The
Supreme Court had the ability to resolve questions surrounding
defense witness immunity, but declined every opportunity to do so.
See, e.g.,Hunter v. California, 498 U.S. 887, 887 (1990)(Marshall,
J., dissenting from denial of writ of certiorari); Autry v.
McKaskle, 465 U.S. 1085, 1086 (1984)(Marshall, J., dissenting from
denial of writ of certiorari).]
B.Arguments in Favor of Obtaining Immunity for Defense
WitnessesWhile obtaining immunity for defense witnesses remains an
unsettled area of law, proponents continue to advance a multitude
of arguments in favor of granting defense-witness
immunity.[footnoteRef:24] These arguments center on two
premisesdefense-witness immunity is needed to: (1) balance the
power between the prosecution and the defense to ensure a fair and
just trial;[footnoteRef:25] and (2) protect the defendants
constitutional rights.[footnoteRef:26] [24: Lipanovich, supra note
8, at 185.] [25: Chambers v. Mississippi, 410 U.S. 284, 294 (1973)
(The right of an accused in a criminal trial to due process is, in
essence, the right to a fair opportunity to defend against the
States accusations.).] [26: Lipanovich, supra note 8, at 185.]
1. Balancing Power to Ensure a Fair and Just TrialThe first
argument in support of defense-witness immunity emphasizes that
leveling the playing field, between defendant and prosecutor,
allows courts to provide a fair and just trial.[footnoteRef:27]
Defense-witness immunity can uncover the truth and prevent the
incarceration of innocent defendants.[footnoteRef:28] The U.S.
Attorney Manual is a Department of Justice internal reference guide
that provides the controlling policies and procedures for U.S.
Attorneys.[footnoteRef:29] This manual states, 18 U.S.C. 6002 will
not be used to compel the production of testimony or other
information on behalf of a defendant except in extraordinary
circumstances where the defendant plainly would be deprived of a
fair trial without such testimony or other
information.[footnoteRef:30] Ultimately, this gives the government
the final say and leaves defendants with very few options, which is
especially troubling given the adversarial nature of a criminal
prosecution.[footnoteRef:31] [27: See id. at 18689.] [28: See Brady
v. Maryland, 373 U.S. 83, 87 (1963) (stressing that societys
interest in trials extends beyond convicting the guilty).] [29:
U.S. Dept of Justice, United States Attorneys Manual 1-1.100
(1997), available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/.] [30:
OSullivan, supra note 9, at 877 n.4 (quoting id. at 9-23.214).]
[31: Lipanovich, supra note 8, at 18889.]
Although compelled testimony often plays an important part in
obtaining a successful result in criminal
prosecutions,[footnoteRef:32] courts frequently reject the idea
that there is a power imbalance between prosecutors and
defendants.[footnoteRef:33] These courts, which include the Second
and Third Circuits, note the affirmative obligations (e.g., burden
of proof) that prosecutors have, as well as the restrictions they
face (e.g., the inability to comment on a defendants choice not to
testify).[footnoteRef:34] Effectively, a defendant could be
acquitted at trial without presenting any evidence at all, while
the prosecution must convince the jury beyond a reasonable doubt of
defendants guilt.[footnoteRef:35] Despite the evidentiary standard
and inability of the prosecution to compel the defendants
testimony, the Ninth Circuit has not dismissed the idea of
inequality, and instead posed the argument for defense-witness
immunity as a mere hypothetical: [W]here two eyewitnesses tell
conflicting stories, and only the witness testifying for the
government is granted immunity, the defendant would be denied any
semblance of a fair trial.[footnoteRef:36] [32: SeeKastigar v.
United States, 406 U.S. 441, 44647 (1972)(noting that immunity
statutes are essential to the effective enforcement of various
criminal statutes);Murphy v. Waterfront Commn, 378 U.S. 52,
9495(1964) (White, J., concurring) (calling compelled testimony one
of the Governments primary sources of information).] [33: See King,
Jr., supra note 6, at 175 (examining the unilateral distribution of
governmental powers to the prosecutor and the corresponding lack of
governmental powers afforded to defendants); see, e.g., United
States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980) (dismissing
this type of argument as entirely unpersuasive); see alsoUnited
States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978)(Due process
has never yet been held to require that the defendant be permitted
to marshal precisely the same investigative and legal resources as
the prosecution....).] [34: Turkish, 623 F.2d at 774; see
alsoHerman, 589 F.2d at 1203.] [35: Lipanovich, supra note 8, at
19091.] [36: United States v. Westerdahl, 945 F.2d 1083, 1087 (9th
Cir. 1991) (quotingUnited States v. Brutzman, 731 F.2d 1449, 1452
(9th Cir. 1984)).]
2. Protecting Constitutional RightsThe second argument in favor
of granting defense-witness immunity focuses on protecting a
defendants constitutional rights.[footnoteRef:37] Typically, legal
commentators rely upon constitutional arguments to advance their
ideas, and the area of defense-witness immunity is no
exception.[footnoteRef:38] The right to a fair trial is one of the
most important notions underlying the American criminal justice
system; one way a fair trial is achieved is through granting
defense-witness immunity.[footnoteRef:39] Further support for
defense-witness immunity is found in various parts of the
Constitution, as well as Supreme Court precedent.[footnoteRef:40]
[37: See U.S. Const. amend. VI (providing that an accused has a
constitutional right to have compulsory process for obtaining
witnesses in his favor); U.S. Const. amend. V, XIV (referring to
the due process clause under both amendments, depending on whether
the prosecutor represents the state or the federal government).]
[38: See, e.g., Howard J. Vogel, The Ordered Liberty of Substantive
Due Process and the Future of Constitutional Law as a Rhetorical
Art: Variations on a Theme From Justice Cardozo in the United
States Supreme Court, 70 Alb. L. Rev. 1473, 154549 (2007)
(discussing the formulation of constitutional arguments).] [39:
Estelle v. Williams, 425 U.S. 501, 503 (1976) (concluding that the
right to a fair trial is a fundamental liberty); Lipanovich, supra
note 8, at 18586 (arguing that defense-witness immunity is needed
in order to protect a defendants constitutional rights, including
the right to a fair trial).] [40: See Lipanovich, supra note 8, at
18591 (referencing Supreme Court cases and constitutional
amendments that support granting defense-witness immunity).]
The Sixth Amendment supports defense-witness
immunity.[footnoteRef:41] The Sixth Amendment states, the accused
shall enjoy the right . . . to have compulsory process for
obtaining witnesses in his favor.[footnoteRef:42] In Washington v.
Texas, the Supreme Court detailed the Sixth Amendments importance
with respect to a defendants case and stated: [41: See U.S. Const.
amend. VI.] [42: Id.]
The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to
present a defense, the right to present the defendants version of
the facts as well as the prosecutions to the jury so it may decide
where the truth lies.[footnoteRef:43] [43: 388 U.S. 14, 19 (1967).
]
The Supreme Court went further and declared, [t]his right is a
fundamental element of due process of law.[footnoteRef:44] [44:
Id.]
The Due Process Clauses of the Fifth and Fourteenth Amendments
also support defense-witness immunity.[footnoteRef:45] In Chambers
v. Mississippi, the Supreme Court held that, [t]he right of an
accused in a criminal trial to due process is, in essence, the
right to a fair opportunity to defend against the States
accusations.[footnoteRef:46] Accordingly, defendants argue that due
process requires providing immunity to a defense witness to ensure
that the defendant is able to fully present a
defense.[footnoteRef:47] Without the immunity power, a defendants
due process rights may be violated because witnesses with relevant
testimony may refuse to take the stand for fear of future
prosecution or may take the stand and assert the Fifth Amendment
privilege.[footnoteRef:48] In either situation, the defendants due
process rights are violated because the court and the jury will not
hear the relevantand sometimes
exculpatorytestimony.[footnoteRef:49] [45: See U.S. Const. amend V,
XIV.] [46: 410 U.S. 284, 294 (1973) (finding a violation of due
process where the court denied the defendants motion to treat his
own witness, the man who confessed to the crime the defendant was
on trial for, as hostile).] [47: See United States v. Straub, 538
F.3d 1147, 1155 (9th Cir. 2008).] [48: See id. at 1156
(contemplating the problems with denying immunity to defense
witnesses); Govt of V.I. v. Smith, 615 F.2d 964, 967 (3d Cir. 1980)
(providing an example where the prosecution failed to provide
immunity to the defense witness, who ultimately invoked the Fifth
Amendment when he took the stand).] [49: See Straub, 538 F.3d at
1155; Smith, 615 F.2d at 967.]
II.The Circuit Split: How to Approach Defense-Witness
ImmunityAlthough every circuit court has ruled on the issue of
defense-witness immunity, the courts are split on how specifically
to deal with it.[footnoteRef:50] Three prominent approaches have
surfaced: (1) the Third Circuits effective defense theory; (2) the
Second Circuits prosecutorial misconduct majority[footnoteRef:51]
approach; and (3) the Ninth Circuits prosecutorial misconduct
minority[footnoteRef:52] approach.[footnoteRef:53] However, under
any of these judicial approaches, it is very rare for a defendant
to receive immunity for a key witness.[footnoteRef:54] [50: See
infra Part II.AC. ] [51: This approach has been deemed the majority
approach because ten of the twelve circuit courts have the ability
to grant immunity if the prosecutor is found to have abused
discretion in granting immunity, making this approach the most
widely used amongst the circuits. Lipanovich, supra note 8, at
181.] [52: The Ninth Circuits prosecutorial misconduct approach is
the minority one since most of the circuit courts use the Second
Circuits approach. Id.] [53: See infra Parts IIIV.] [54: See, e.g.,
United States v. Davidson, No. H-10-201-3S, 2010 WL 3521726, at *4
(S.D. Tex. Sept. 8, 2010)(rejecting the defendants request for
witness immunity when the court was unable to locate a decision
within the Fifth Circuit where a court found that the government
used its immunity privilege to unfairly skew the fact-finding
process or where due process or other extraordinary circumstances
required the court to grant use immunity to a defense
witness.).]
A. The Third Circuits Effective Defense Theory1. Government of
Virgin Island v. SmithIn Government of Virgin Island v. Smith, the
Third Circuit adopted an approach to defense-witness immunity
called the effective defense theory.[footnoteRef:55] In Smith, four
defendants were on trial for robbing Roy Phipps
(Phipps).[footnoteRef:56] Three of the defendants moved to
introduce testimony from Ernesto Sanchez (Sanchez), who previously
told the police that he, Scotto, Mon, and Mouth, were the men who
committed the crimes against Phipps.[footnoteRef:57] One defendant,
Elvis Smith (Elvis), was known as Scotto.[footnoteRef:58]
Therefore, Sanchezs statement would have exculpated the other three
defendants,[footnoteRef:59] but would have incriminated
Elvis.[footnoteRef:60] [55: See615 F.2d 964, 96974 (3d Cir. 1980)
(formulating the effective defense theory of defense-witness
immunity).] [56: Id. at 966.] [57: Id. at 96667. The nicknames used
by Sanchez for the other perpetrators of the crime were not
nicknames for three of the defendants. Id.] [58: Id.] [59:
Collectively these three defendants will be referred to as the
defendants, whereas the fourth defendant, Elvis Smith, will be
referred to as Elvis.] [60: Smith, 615 F.2d at 967.]
At trial, the defendants called Sanchez as a witness, hoping
that his testimony would reveal his previous statement to the
police.[footnoteRef:61] However, Sanchez was uncooperative and
asserted the Fifth Amendment privilege against
self-incrimination.[footnoteRef:62] The defendants attempted to
introduce the statement by declaring Sanchez an unavailable witness
under an exception to the hearsay rule.[footnoteRef:63] The
government argued that it would be unable to cross-examine Sanchez
under those circumstances.[footnoteRef:64] The trial court agreed
and did not admit Sanchezs previous statement to the
police.[footnoteRef:65] [61: Id.] [62: Id.] [63: Id.] [64: Id.]
[65: Id.]
The defendants then requested a grant of immunity for
Sanchez.[footnoteRef:66] An authority in the Virgin Island Attorney
Generals office agreed to provide immunity for Sanchez as long as
the U.S. Attorney consented.[footnoteRef:67] For unknown reasons,
this consent was never granted, and the potentially exculpatory
evidence which the defen[dants] desired to offer through Sanchez
testimony[] was never presented to the jury.[footnoteRef:68] All
four defendants were convicted for robbery; the three defendants
who had sought to admit Sanchezs statement appealed on the grounds
that their due process rights were violated by failure to grant
immunity to Sanchez.[footnoteRef:69] [66: Smith, 615 F.2d at 967.]
[67: Id.] [68: Id.] [69: Id.]
2. The Third Circuits Effective Defense TheoryThe Smith court
acknowledged that withholding exculpatory facts from the jury
violates a defendants due process rights.[footnoteRef:70] The Third
Circuit understood that a courts power to grant judicial immunity
must be limited.[footnoteRef:71] Therefore, the court presented
five conditions that must be met before a court may grant immunity:
(1) immunity must be properly sought in the district court; [(2)]
the defense witness must be available to testify; [(3)] the
proffered testimony must be clearly exculpatory; [(4)] the
testimony must be essential; and [(5)] there must be no strong
governmental interests which countervail against a grant of
immunity.[footnoteRef:72] [70: Id. at 970.] [71: Id. at 972.] [72:
Smith, 615 F.2d at 972 (drawing on both the Chambers and Herman
decisions). See Chambers v. Mississippi, 410 U.S. 284, 297, 302
(1973); United States v. Herman, 589 F.2d 1191, 1204, 1207, 1213
(3d Cir. 1978).]
The Third Circuits approach relies heavily on the third and
fourth requirements that the witness testimony must be clearly
exculpatory and essential.[footnoteRef:73] The Third Circuit
emphasized that a defense witness will be denied immunity if the
proffered testimony is found to be ambiguous, not clearly
exculpatory, cumulative or if it is found to relate only to the
credibility of the governments witnesses.[footnoteRef:74]
Ultimately, the Third Circuit was attempting to create a new remedy
to protect an established righta defendants right to present an
effective defense.[footnoteRef:75] The court acknowledged that the
common remedy of granting a new trial would be ineffective in the
Smith case because the defendants still would not be able to
present the exculpatory evidence.[footnoteRef:76] Thus, the
effective defense theory was born.[footnoteRef:77] [73: Smith, 615
F.2d at 972.] [74: Id.] [75: Id. at 971.] [76: Id.] [77: See id. at
972.]
B. The Second Circuits Prosecutorial Misconduct Majority
ApproachThe Second Circuits approach focuses on prosecutorial
misconduct.[footnoteRef:78] Not surprisingly, every circuit court
allows at least the limited availability of defense witness
immunity if prosecutorial misconduct can be shown.[footnoteRef:79]
[78: See infra Part II.B (referring to the Second Circuit, or
prosecutorial misconduct majority approach).] [79: Lipanovich,
supra note 8, at 181. Most circuits require that in order to grant
witness immunity the level of prosecutorial misconduct must
deliberately distort the fact-finding process. Id. at 182.
Unsurprisingly, in these circuits defense-witness immunity has
never been granted. Id.]
1. United States v. EbbersEbbers was the Chief Executive Officer
of the publicly traded company, WorldCom, Inc.
(WorldCom).[footnoteRef:80] Between the end of 2000 and the
beginning of 2002, Ebbers concealed WorldComs decline in
performance by fabricating the companys financial
records.[footnoteRef:81] At trial, Ebbers was convicted of
conspiracy, securities fraud, and related crimes and sentenced to
twenty-five years in prison.[footnoteRef:82] On appeal, he argued
that the district court erred in permitting the government to
introduce testimony by immunized witnesses while denying immunity
to potential defense witnesses who were rendered unavailable to
Ebbers by their invocation of the privilege against
self-incrimination.[footnoteRef:83] Ebbers further argued, he was
denied a fair trial because the government granted immunity only to
witnesses whose testimony incriminated him and not to witnesses
whose testimony would exculpate him but who would have invoked the
privilege against self-incrimination if called to
testify.[footnoteRef:84] [80: United States v. Ebbers, 458 F.3d
110, 112 (2d Cir. 2006).] [81: Id.] [82: Id.] [83: Id.] [84: Id. at
117.]
2. Ebbers Prosecutorial Misconduct Majority ApproachIn Ebbers,
the Second Circuit drew on its previous decision in United States
v. Burns[footnoteRef:85] and set forth the test for determining
whether the extent of the prosecutorial misconduct warrants the
grant of defense witness immunity.[footnoteRef:86] In doing so, the
court stated that such a decision requires considering whether:
[85: United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982)
(inspiring the Second Circuits approach to defense-witness immunity
in Ebbers) .] [86: See Ebbers, 458 F.3d at 118; Burns, 684 F.2d at
1077.]
(1) the government has engaged in discriminatory use of immunity
to gain a tactical advantage, or through its own overreaching, has
forced the witness to invoke the Fifth Amendment; and (2) the
witness testimony will be material, exculpatory and not cumulative
and is not obtainable from any other source.[footnoteRef:87] [87:
Burns, 684 F.2d at 1077.]
The Second Circuits approach is a two-prong
test.[footnoteRef:88] Essential to this approach is that there must
be some type of prosecutorial misconduct or governmental
abuse.[footnoteRef:89] Prosecutorial misconduct can occur in two
ways: (1) if the prosecutor grants immunity to the prosecution
witness and denies immunity to the defense witness with the intent
of distorting the fact-finding process;[footnoteRef:90] and (2) if
the prosecutor threatens or badgers a potential defense witness in
order to discourage him from testifying.[footnoteRef:91] Showing
either form of prosecutorial misconduct satisfies the first prong
of the Second Circuits approach.[footnoteRef:92] Although, denying
immunity to one witness while granting immunity to another does not
amount to prosecutorial overreaching per se.[footnoteRef:93]
Similarly, there is no prosecutorial overreach when the
immunity-seeking witness is a target for future
prosecution.[footnoteRef:94] The Second Circuit further explained
that this test requires a district court [to] find facts as to the
governments acts and motives and then balance factors relating to
the defendants need for the evidence and its centrality, or lack
thereof, to the litigation.[footnoteRef:95] [88: Ebbers, 458 F.3d
at 119.] [89: Id.] [90: Id.; United States v. Angiulo, 897 F.2d
1169, 1192 (1st Cir. 1990); United States v. Shandell, 800 F.2d
322, 324 (2d Cir. 1986); United States v. Todaro, 744 F.2d 5, 10
(2d Cir. 1984).] [91: See Ebbers, 458 F.3d at 119; United States v.
Lord, 711 F.2d 887, 891 (9th Cir. 1983); United States v. Morrison,
535 F.2d 223, 229 (3d Cir. 1976). This type of misconduct
originated in Webb v. Texas, 409 U.S. 95, 9596 (1972) (per curiam),
where a judge continually warned the witness about the penalties of
perjury, which forced the witness to invoke the Fifth Amendment.
See Carter v. United States, 684 A.2d 331, 341 (D.C. 1996) (en
banc) (discussing the prosecutorial misconduct in Webb).] [92:
Blissett v. Lefevre, 924 F.2d 434, 442 (2d Cir. 1991).] [93: See
id.] [94: Shandell, 800 F.2d at 324; see United States v. Turkish,
623 F.2d 769, 778 (2d Cir. 1980).] [95: Ebbers, 458 F.3d at
118.]
C. The Ninth Circuits Prosecutorial Misconduct Minority
ApproachThe Ninth Circuit also focuses on prosecutorial misconduct
in its approach to defense-witness immunity,[footnoteRef:96] and it
has been coined the prosecutorial misconduct minority
approach.[footnoteRef:97] Before United States v. Straub, the Ninth
Circuit was unclear about whether a defendant requesting immunity
must show that the prosecutors purpose was to distort the
fact-finding process, or whether prosecutorial actions that had the
effect of distortion were enough to trigger
immunity.[footnoteRef:98] Straub clarified how courts in the Ninth
Circuit should approach defense-witness immunity.[footnoteRef:99]
[96: United States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008)
(articulating the Ninth Circuit approach to defense-witness
immunity and reinforcing the first approach discussed in this Note,
centered on prosecutorial misconduct).] [97: See id. at 1162.
Throughout this Note, this approach will be referred to as the
Ninth Circuit Approach.] [98: Lipanovich, supra note 8, at 183
(emphasis in original).] [99: 538 F.3d at 1162.]
1. United States v. StraubIn United States v. Straub, police
executed a search warrant and arrested Straub at his
home.[footnoteRef:100] There, police uncovered marijuana plants and
selling bags.[footnoteRef:101] The police investigation discovered
that Straub was involved in a wide-ranging and long-standing
conspiracy to manufacture and distribute
methamphetamine.[footnoteRef:102] Straub was part of a gang known
as The White Neck Crew (The Crew) that would unlawfully enter the
homes of other drug dealers to steal money and
drugs.[footnoteRef:103] Over Straubs five-year involvement, Straub
and The Crew committed several robberies, including one where
Straub and an accomplice carried and used a firearm in connection
with an attempt to rob Robert Garrett and take more than 100
marijuana plants.[footnoteRef:104] Straub purportedly discharged a
gun during this robbery.[footnoteRef:105] Ultimately, Straub was
charged with conspiracy, possession with intent to distribute, and
manufacture of methamphetamine and marijuana, along with charges
related to the carrying, using, and discharging of a firearm in
connection with the attempted robbery of Robert
Garrett....[footnoteRef:106] [100: Id. at 114849.] [101: Id. at
1149.] [102: Id.] [103: Id.] [104: Id.] [105: Straub, 538 F.3d at
1149.] [106: Id. Robert Garrett was shot during the attempted
robbery. Id.]
At trial, Straub wanted to impeach the prosecutions star
witness, Jacob Adams (Adams), by introducing a prior inconsistent
statement through another witness, Mike Baumann
(Baumann).[footnoteRef:107] The defense knew Baumann would assert
his Fifth Amendment privilege against
self-incrimination.[footnoteRef:108] The court did not grant
immunity under the use-immunity statute, and Straub was convicted
and sentenced to 272 months in prison.[footnoteRef:109] [107: Id.
at 1150.] [108: Id.] [109: Id. at 1151; see 18 U.S.C. 6002
(2012).]
On appeal, Straub challenged his conviction, arguing the
district court erred in its denial of a request to compel the
prosecution to grant use immunity to defense witness
Baumann.[footnoteRef:110] The Ninth Circuit agreed and remanded the
case, ordering the district court to enter a judgment of acquittal
on the shooting charges unless the prosecution granted immunity to
Baumann or did not use Adamss testimony on
retrial.[footnoteRef:111] [110: Straub, 538 F.3d at 1151.] [111:
Id. at 1166.]
2. Straubs Prosecutorial Misconduct Minority ApproachIn Straub,
the Ninth Circuit created a new test for defense-witness
immunity.[footnoteRef:112] It held that in order to compel use
immunity for a defense witness, the defendant must demonstrate
that: (1) the defense witness seeking immunity must have relevant
testimony; and (2) either (a) the prosecution intentionally caused
the defense witness to invoke the Fifth Amendment[s]
self-incrimination protection;[footnoteRef:113] or (b) the
prosecution granted immunity to its own witness, but denied
immunity to a defense witness whose testimony would have directly
contradicted that of the government witness.[footnoteRef:114] Under
either scenario, if the prosecutors actions result in a distortion
of the fact-finding process, such that the defendant was denied his
due process right to a fundamentally fair trial, then the defense
witness must be granted use immunity.[footnoteRef:115] [112: See
id.] [113: Id.] [114: Id.] [115: Id.]
AnalysisThe Third, Second, and Ninth Circuit approaches to
defense-witness immunity demonstrate the various competing
interests at play during a criminal trial.[footnoteRef:116] While
the Third Circuit approach articulates the five-factor effective
defense theory, the Second and Ninth Circuits focus on the
prosecutorial misconducts effect on a defendants ability to defend
himself.[footnoteRef:117] The substantial difference between the
circuit court approaches to defense-witness immunity, along with
the serious constitutional issues involved, demonstrate the need
for a universal approach.[footnoteRef:118] [116: See supra Part
II.] [117: See supra Parts II.A.2 C.] [118: See infra Part V.]
III.Analysis of the Third Circuit Approach and the Problems with
Applying ItA. The Reasoning Behind the Third Circuit ApproachAs
previously discussed, the Third Circuit approach, or the effective
defense theory, was derived from Government of Virgin Islands v.
Smith.[footnoteRef:119] It has been deemed the effective defense
theory because it provides federal courts with the inherent power
to grant immunity to witnesses whose testimony is essential to an
effective defense.[footnoteRef:120] This judicial power is
independent of the prosecutors statutory ability to grant immunity
to defense witnesses, and should be exercised to protect the
fact-finding process that occurs during a trial.[footnoteRef:121]
The Third Circuit adopted this approach because it believed that a
criminal defendant should not be convicted because a witness, whose
testimony would exonerate the defendant, has invoked the privilege
against self-incrimination.[footnoteRef:122] It deemed the
empowerment of federal courts to grant immunity consistent with
other remedies where due process violations have
occurred.[footnoteRef:123] Despite its good intent, the Third
Circuits motives for creating the effective defense theory fall
short of protecting a defendants ability to elicit favorable
testimony necessary to ensure a fair trial.[footnoteRef:124] [119:
See 615 F.2d 964, 972 (3d Cir. 1980); see also supra Part II.A.]
[120: See United States v. Pennell, 737 F.2d 521, 526 (6th Cir.
1984).] [121: See Smith, 615 F.2d at 969.] [122: Pennell, 737 F.2d
at 527.] [123: See Smith, 615 F.2d at 971 (discussing high-profile
cases granting new trials to protect a defendants due process
rights).] [124: See infra Part III.B (analyzing the problems with
the Third Circuit approach).]
The effective defense approach attempted to alleviate an
impediment to the defendant by acknowledging the unfair effect that
withholding exculpatory information can have on a defendants due
process rights.[footnoteRef:125] However, it created insurmountable
requirements and thus failed to achieve its goal.[footnoteRef:126]
Under this approach, judicial immunity is triggered, not by
prosecutorial misconduct or intentional distortion of the trial
process, but by the fact that the defendant is prevented from
presenting exculpatory evidence which is crucial to his
case.[footnoteRef:127] This is a challenging burden to
meet.[footnoteRef:128] In fact, only five of the forty-six reported
decisions from the Third Circuit sided with the
defense.[footnoteRef:129] With only about 11% of defendants being
awarded immunity so as to create reasonable doubt in the minds of
the jury, this approach does not provide defendants with a
legitimate tool to present favorable evidence.[footnoteRef:130]
Under the faade of protecting defendants constitutional rights, the
Third Circuit is able to appear impartial and as though fair trials
are regularly conducted, when in reality the Third Circuit is
reluctant to elevate the rights of an accused over the governments
interests.[footnoteRef:131] Moreover, this approachs requirements
permit a prosecutors desire to charge an immunity-seeking defense
witness (with a crime or public interest disservice) to offset a
grant of immunity.[footnoteRef:132] The fact that courts in the
Third Circuit seldom grant immunity to criminal defendants clearly
demonstrates that this approachs requirements are
unattainable.[footnoteRef:133] [125: Smith, 615 F.2d at 972; see
United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990)
(noting that the courts power to grant defense-witness immunity,
under the effective defense theory, is grounded in a defendants due
process right to have exculpatory evidence presented to the jury).]
[126: See Angiulo, 897 F.2d at 1191; Smith, 615 F.2d at 972.] [127:
Smith, 615 F.2d at 969. This is the main difference between the
Third Circuit approach and the other two approaches that focus on
prosecutorial misconduct. See United States v. Straub, 538 F.3d
1147, 1162 (9th Cir. 2008); United States v. Burns, 684 F.2d 1066,
1077 (2d Cir. 1982).] [128: Lipanovich, supra note 8, at 181
(discussing defendants difficulty in meeting these requirements).]
[129: Id.] [130: See id.] [131: See Earl v. United States, 361 F.2d
532, 53334 (D.C. Cir. 1966) (discussing concerns about a defendants
inability to provide immunity to a witness with exculpatory
information); Federal Procedure, supra note 19.] [132: Smith, 615
F.2d at 973.] [133: See Lipanovich, supra note 8, at 181.]
B. The Problems Presented by the Third Circuits ApproachThere
are three major problems presented by the Third Circuits effective
defense theory: (1) it creates a separation of powers
issue;[footnoteRef:134] (2) it requires judges to conduct a
balancing test;[footnoteRef:135] and (3) it places a high burden on
defendants.[footnoteRef:136] [134: Smith, 615 F.2d at 971.] [135:
See Lipanovich, supra note 8, at 196.] [136: See id.]
Courts have been reluctant to adopt the Third Circuits effective
defense approach to defense-witness immunity for a number of
reasons.[footnoteRef:137] First, is the separation-of-powers
dilemma.[footnoteRef:138] The separation-of-powers doctrine is a
constitutional notion that the three branches of government have
different powers and functions.[footnoteRef:139] Specifically, the
effective defense approach requires courts to assume inherent
authority to grant judicial immunity themselves, creating a
separation-of-powers problem because the power to grant witness
immunity is of legislative origin, and was granted to the executive
branch.[footnoteRef:140] The Third Circuit is alone in its adoption
of the effective defense theory, and even acknowledged the
potential separation-of-powers problem that this approach
poses.[footnoteRef:141] Courts frequently decline to adopt this
approach because of the separation of powers
problems.[footnoteRef:142] Courts that oppose the Third Circuits
approach argue that permitting the judiciary to exercise this type
of power, absent approval from the legislature, violates the
separation-of-powers principle.[footnoteRef:143] [137: United
States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991); see Federal
Procedure, supra note 19.] [138: Smith, 615 F.2d at 97172; see
Federal Procedure, supra note 19.] [139: Phillip B. Kurland, The
Rise and Fall of the Doctrine of Separation of Powers, 85 Mich. L.
Rev. 592, 593 (1986). The separation of powers is necessary in
order to ensure that there is a balanced government. See id.] [140:
United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990).]
[141: See Angiulo, 897 F.2d at 1191 (This theory has been rejected
... by virtually every other court that has considered the
issue....); Smith, 615 F.2d at 971; see, e.g., United States v.
Tindle, 808 F.2d 319, 325 n.4 (4th Cir. 1986) (emphasizing that the
courts have criticized the effective defense theory and labeling it
the minority approach to defense-witness immunity).] [142: See
Mohney, 949 F.2d at 1401.] [143: Angiulo, 897 F.2d at 1191; see,
e.g., United States v. Pennell, 737 F.2d 521, 527 (6th Cir. 1984)
(pointing out the separation of powers problem presented by the
Third Circuits effective defense theory approach).]
Another reason courts criticize the effective defense theory is
because it requires judges to conduct a balancing
test.[footnoteRef:144] Courts are required to weigh a defendants
need for particular witnesses against the prosecutors reasons for
not seeking immunity for the witnesses herselfan exercise not
well-suited for judicial decision making.[footnoteRef:145] This
argument is unsound because at no point should prosecutorial
interests outweigh a defendants constitutional right to a fair
trial.[footnoteRef:146] Moreover, this argument should not be used
as a reason to deny immunity to a defense witness because that
would create an open door argument for
prosecutors.[footnoteRef:147] Prosecutors would be able to argue
that they have an interest in prosecuting the same witness who has
the essential and clearly exculpatory information that could be
helpful to the defendant, and the court could conclude that the
governmental interests outweigh the defendants
rights.[footnoteRef:148] This argument is invalid and should never
enter into a decision of whether to grant use immunity because then
the witness is not ensured absolute immunity, and thus the
prosecutor will still be able to charge the
witness.[footnoteRef:149] [144: See Angiulo, 897 F.2d at 1191.]
[145: Id.; see United States v. Turkish, 623 F.2d 769, 77577 (2d
Cir. 1980).] [146: Lipanovich, supra note 8, at 197 (emphasis
added).] [147: Id.] [148: See Govt of V.I. v. Smith, 615 F.2d 964,
972 (3d Cir. 1980); Lipanovich, supra note 8, at 197.] [149: 18
U.S.C. 6002 (2012) (providing only that a witnesss testimony will
not have full, absolute immunity because the testimony may still be
used against him in a future criminal prosecution for perjury,
giving a false statement, or otherwise failing to comply with the
[use immunity] order).]
Finally, the Third Circuits effective defense theory has been
criticized because of the high burden it places on
defendants.[footnoteRef:150] The standard requiring the witnesss
testimony to be both essential and clearly exculpatory is too
challenging for defendants.[footnoteRef:151] This high burden is
also problematic because it does not provide enough protection for
a defendants rights.[footnoteRef:152] There are many situations
where a defense witnesss testimony may be essential or clearly
exculpatory, but since both are required the defendant is left
without this witnesss testimony.[footnoteRef:153] Due to the
obstacles associated with this approach, the Third Circuits
effective defense theory should not be adopted or even considered
by the U.S. Supreme Court.[footnoteRef:154] [150: Lipanovich, supra
note 8, at 196; see supra Part III.B.] [151: Lipanovich, supra note
8, at 196; see Smith, 615 F.2d at 972.] [152: Lipanovich, supra
note 8, at 196.] [153: See id.] [154: See supra Part III.B.]
IV.Problems Presented by the Second Circuits Approach The Second
Circuits approach to defense-witness immunity is inferior to the
Ninth Circuits approach because: (1) it places too high of a burden
on the defendant;[footnoteRef:155] (2) it wrongly focuses on the
prosecutors intent;[footnoteRef:156] and (3) courts are reluctant
to find prosecutorial misconduct.[footnoteRef:157] [155: See United
States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988); United States v.
Burns, 684 F.2d 1066, 1077 (2d Cir. 1982).] [156: See Lipanovich,
supra note 8, at 194.] [157: Id. at 196 (noting that [prosecutorial
misconduct] has never been found under the [Second Circuit]s test
for defense witness immunity).]
The Second Circuits approach to defense-witness immunity
presents a number of problems.[footnoteRef:158] The biggest issue
with the Second Circuits approach arises from the high burden of
proof a defendant must meet.[footnoteRef:159] A defendant is
required to show more than just that the witness unquestionably has
exculpatory and material evidence not available from any other
source.[footnoteRef:160] A defendant is required to make an
additional showing that the prosecutors actions were deliberate and
discriminatory.[footnoteRef:161] Thus, the witness will not be
granted immunity if the defendant cannot demonstrate that the
prosecutor acted deliberately and discriminatorily in denying the
witness immunity.[footnoteRef:162] This causes courts to
erroneously focus on the prosecutors intent.[footnoteRef:163] This
approach will often be an ineffective and inadequate means to
ensure a defendants right to a fair trial is met.[footnoteRef:164]
Simply because the prosecution did not intend to place a defendant
at any sort of disadvantage does not mean that the prosecutors
decision did not have that effect.[footnoteRef:165] [158: See id.
at 183 (pointing out potential problems with the Second Circuits
prosecutorial misconduct approach).] [159: See United States v.
Ebbers, 458 F.3d 110, 119 (2d Cir. 2006); Lipanovich, supra note 8,
at 183 (referring to the more stringent definition of prosecutorial
misconduct, as applied by the Second Circuit).] [160: See,
e.g.,United States v. Gottesman, 724 F.2d 1517, 1524 (11th Cir.
1984)([D]istrict courts may not grant immunity to a defense witness
simply because that witness possesses essential exculpatory
information unavailable from other sources.); Autry v. Estelle, 706
F.2d 1394, 1401 (5th Cir. 1983)(rejecting the Third Circuits notion
that judicial immunity could come into play when the defendant is
prevented from presenting exculpatory evidence which is crucial to
his case) (quotingGovt of V.I. v. Smith, 615 F.2d 964, 969 (3d Cir.
1980)).] [161: Ebbers, 458 F.3d at 119.] [162: See id; Lipanovich,
supra note 8, at 183.] [163: See Lipanovich, supra note 8, at 194.]
[164: See, e.g., Ebbers, 458 F.3d at 119.] [165: Compare United
States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (granting
immunity when prosecutorial actions have the effect of distorting
the fact-finding process), with Ebbers, 458 F.3d at 119 (requiring
that the defendant show that the prosecutors actions were a
deliberate intent to distort the fact-finding process).]
Finally, the Second Circuits approach fails because federal
courts rarely find prosecutorial misconduct.[footnoteRef:166] If
courts are hesitant to find prosecutorial misconduct, the Second
Circuits approach will be ineffective at ensuring defendants have a
fair opportunity to defend against the States
accusations.[footnoteRef:167] Similar to the Third Circuit, the
Second Circuit approach is flawed because it fails to accomplish
its purported goal.[footnoteRef:168] While it attempts to preserve
a defendants constitutional rights, the Second Circuit approach
regularly sides with the prosecution, thus indirectly diminishing
the defendants rights.[footnoteRef:169] [166: See Lipanovich, supra
note 8, at 196 (noting that [prosecutorial misconduct] has never
been found under the [Second Circuit]s test for defense witness
immunity).] [167: Chambers v. Mississippi, 410 U.S. 284, 294
(1973).] [168: See supra Part III.] [169: See Lipanovich, supra
note 8, at 196.]
V.The Supreme Court Should Adopt the Ninth Circuit ApproachWhile
the Third and Second Circuit approaches are inadequate for a number
of reasonsthe frequent insurmountable burden on defendants, the
separation of powers clash, the judicial balancing test, the focus
on the prosecutors intent, and the courts reluctance to find
prosecutorial misconductthe Ninth Circuit approach is
best.[footnoteRef:170] The Ninth Circuit approach is the best way
to address defense-witness immunity because it is more
lenient,[footnoteRef:171] focuses on the effect of the prosecutors
actions,[footnoteRef:172] and balances grants of immunity for
prosecutors and defendants.[footnoteRef:173] Accordingly, the
Supreme Court should address the issue of defense-witness immunity
and adopt the Ninth Circuits superior approach.[footnoteRef:174]
[170: See supra Parts IIIIV.] [171: Compare United States v.
Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (broadening
prosecutorial misconduct to include conduct that has the effect of
distorting the fact-finding process), with United States v. Ebbers,
458 F.3d 110, 119 (2d Cir. 2006) (limiting prosecutorial misconduct
only to conduct that deliberately distorts the fact-finding
process).] [172: Compare Straub, 538 F.3d at 1162 (holding
prosecutorial misconduct includes actions that have the effect of
distorting the fact-finding process), with Ebbers, 458 F.3d at 119
(requiring prosecutorial misconduct be shown by deliberate actions
that distort the fact-finding process).] [173: See Straub, 538 F.3d
at 1157 (allowing courts to grant immunity for defense witnesses,
instead of making the immunity grants dependent on the prosecutors
decisions).] [174: See supra Part V.]
A. The Supreme Court Is the Correct Forum to Address the Issue
of Defense-Witness ImmunityThe Supreme Courtrather than the
legislatureshould address defense-witness
immunity.[footnoteRef:175] On many occasions, the Supreme Court has
created important rights for criminal defendants, including the
Miranda right against self-incrimination.[footnoteRef:176] As a
result of criminal defendants marginal place in society, an elected
Congress will not represent their interests.[footnoteRef:177] The
constitutional foundation for courts to make or implement
protections for criminal defendants is found in both the Fifth and
Fourteenth Amendment Due Process Clauses.[footnoteRef:178]
Opponents to this position argue that defense-witness immunity is
an issue that should be dealt with by Congress, but this is
unlikely to happen because Congress is incapable of effectively
enacting such potentially controversial laws; thus, defendants are
left with no alternative.[footnoteRef:179] Accordingly, the Supreme
Court must take the responsibility to ensure criminal defendants
rights are protected and address the issue of defense-witness
immunity.[footnoteRef:180] [175: See Lipanovich, supra note 8, at
197 (arguing that the Supreme Court, and not Congress, should
create the defense immunity right).] [176: Miranda v. Arizona, 384
U.S. 436, 46772 (1966) (creating the Miranda rights for criminal
defendants). Contra Michigan v. Tucker, 417 U.S. 433, 444
(1974)(claiming that Miranda warnings are not themselves rights
protected by the Constitution but [are] instead measures to insure
that the [Fifth Amendment] right against compulsory
self-incrimination [is] protected).] [177: Lipanovich, supra note
8, at 197 (stating that criminal defendants are not a popular
group, and thus they need the Supreme Court to protect their rights
since Congress will not).] [178: See U.S. Const. amend. V, XIV;
see, e.g.,Chambers v. Mississippi, 410 U.S. 284, 294 (1973)(The
rights to confront and cross-examine witnesses and to call
witnesses in ones own behalf have long been recognized as essential
to due process.).] [179: SeeUnited States v. Lenz, 616 F.2d 960,
963 (6th Cir. 1980)(While use immunity for defense witnesses may
well be desirable its proponents must address their arguments to
Congress, not the courts.) (citations omitted).] [180: More
specifically the Supreme Court should adopt the Ninth Circuits
approach to defense witness immunity. See infra Part V.BE.]
B. The Ninth Circuit Presents the Best Approach to
Defense-Witness ImmunityThe Ninth Circuits more lenient
prosecutorial misconduct approach presents the best answer for
defense-witness immunity.[footnoteRef:181] Under the Ninth Circuit
approach to defense-witness immunity a defendant is required to
show that the immunity-seeking witnesss testimony is
relevant.[footnoteRef:182] Further, the defendant must show that
the government either: (1) intentionally caused the witness to
invoke the privilege against self-incrimination, in order to
distort the fact-finding process, or (2) denied immunity to a
witness whose testimony would contradict that of a prosecutorial
witness, having the effect of distorting the fact-finding
process.[footnoteRef:183] This test expands the definition of
prosecutorial misconduct by allowing the defendant to show either
that the prosecutor intended to distort the fact-finding process or
that the prosecutors actions had the effect of distorting the
fact-finding process.[footnoteRef:184] This makes the Ninth Circuit
approach superior because it offers two ways whereby defendants can
obtain immunity for these witnesses.[footnoteRef:185] Having two
avenues, both representing circumstances where the defendants
witness is unfairly denied immunity, helps preserve the defendants
right to a fair trial more than the other circuit
approaches.[footnoteRef:186] [181: See United States v. Straub, 538
F.3d 1147, 1162 (9th Cir. 2008); Lipanovich, supra note 8, at 19495
(noting that the Ninth Circuits definition of prosecutorial
misconduct is more inclusive than the Second Circuits definition).]
[182: Straub, 538 F.3d at 1162.] [183: Id.] [184: Compare id.
(broadening prosecutorial misconduct to include conduct that has
the effect of distorting the fact-finding process), with United
States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (limiting
prosecutorial misconduct only to conduct that deliberately distorts
the fact-finding process).] [185: See Straub, 538 F.3d at 1162.]
[186: Compare id. at 116162, with Ebbers, 458 F.3d at 119.]
C. The Ninth Circuit Approach Is More Lenient in ApplicationThe
Supreme Court should adopt the Ninth Circuit approach because it is
more lenient.[footnoteRef:187] This leniency ensures that more
defendants have the opportunity to meet the requirements and obtain
a fair trial.[footnoteRef:188] While some may argue that the Ninth
Circuit approach is too lenient and its requirements are too broad,
these opponents are wrong because the approach still provide[s]
reasonable limitations on defense witness
immunity.[footnoteRef:189] [187: Compare Straub, 538 F.3d at 1162,
with Ebbers, 458 F.3d at 119.] [188: See United States v. Wilkes,
662 F.3d 524, 550 (9th Cir. 2011) (reinforcing the Ninth Circuits
commitment to an approach that holds prosecutors accountable when
the defendant does not receive a fair trial); Straub, 538 F.3d at
1164 (holding that the prosecutors conduct had the effect of
distorting the fact-finding process, and, as a result, denying the
defendant a fair trial); infra Part V.C (arguing that the Ninth
Circuits approach is more lenient than either the Second or Third
Circuits approaches).] [189: Lipanovich, supra note 8, at 196
(noting that the Ninth Circuit approach requires that the testimony
be relevant and contradict that of a government witness who has
been granted immunity, and includes prosecutorial misconduct that
has the effect of distorting the fact-finding process).]
Opponents of defense-witness immunity have presented a number of
arguments,[footnoteRef:190] with three underlying rationales: (1)
the immunity decision should be left to the Executive [Branch], (2)
the defense witness immunity will be abused by witnesses practicing
cooperative perjury, and (3) the immunity grant will impede a
future government prosecution.[footnoteRef:191] However, the
arguments advanced against defense-witness immunity are
unpersuasive because of the important rights that immunity
protects.[footnoteRef:192] [190: See id. at 180, 190 (addressing
the various arguments against defense-witness immunity).] [191:
Id.; see Kastigar v. United States, 406 U.S. 441, 44647
(1972)(declaring immunity statutes as essential to the effective
enforcement of various criminal statutes).] [192: See Ullmann v.
United States, 350 U.S. 422, 438 (1956) (emphasizing the importance
immunity statutes have in the constitutional landscape).]
Opponents of defense-witness immunity argue that the immunity
statutes wording indicates that the Executive Branch is the only
branch of government that may grant immunity.[footnoteRef:193]
Courts have interpreted this language, many concluding that [w]hile
use immunity for defense witnesses may [ ] be desirable . . .
[those in favor of defense witness immunity] must address their
arguments to Congress, not the courts.[footnoteRef:194] Those
opposed to defense-witness immunity have even argued that due to
separation-of-powers concerns, prosecutors are effectively
insulate[d] from granting defense-witnesses
immunity.[footnoteRef:195] These arguments fail because: [193: See
18 U.S.C. 6003(a) (2012) (providing that a United States district
court judge may grant immunity, upon the request of the United
States attorney).] [194: United States v. Lenz, 616 F.2d 960, 963
(6th Cir. 1980) (finding no authority for defense-witness immunity
in the Sixth Amendments compulsory process clause).] [195: United
States v. Moussaoui, 382 F.3d 453, 468 (4th Cir. 2004).]
all courtsincluding those that have never found immunityhave
cast aside this argument and made it clear that under certain
circumstances the refusal to grant immunity to a defense witness
would be an abuse of the discretion provided to the [judicial
branch of the] government by the immunity act.[footnoteRef:196]
[196: Lipanovich, supra note 8, at 180, 191 (emphasis added); see,
e.g.,United States v. Washington, 318 F.3d 845, 855 (8th Cir.
2003)(finding that, under certain circumstances where he abuses his
discretion, the prosecutor may be compelled to grant immunity).
]
Although, any argument that defense-witness immunity violates
the separation-of-powers doctrine is erroneous if courts agree that
in principle, and under some circumstances, defense-witness
immunity should exist.[footnoteRef:197] In this way, if courts
recognize that immunity should exist, they cannot also claim
separation of powers problems when reconciling unfair judicial
practices.[footnoteRef:198] [197: Lipanovich, supra note 8, at 180,
191.] [198: See id.]
Opponents also argue that defense-witness immunity will cause
witnesses to lie and perjure themselves in order to get a friend or
accomplice acquitted.[footnoteRef:199] While this concern has
muster, it is without merit because this type of situation was
directly addressed in the use-immunity statute.[footnoteRef:200]
The use-immunity statute carves out an exception where a persons
immune testimony may be used against him in a prosecution for
perjury; that is, a witness who was previously granted immunity can
be prosecuted for perjury if the witness provided false testimony
while under immunity.[footnoteRef:201] This eliminates any type of
cooperative-perjury argument since a witness who provides false
testimony under the use immunity statute may still be prosecuted
for perjury.[footnoteRef:202] [199: See, e.g.,Blissett v. Lefevre,
924 F.2d 434, 44142 (2d Cir. 1991)(finding that prosecutors are
best equipped to handle grants of immunity because it reduces the
possibility of cooperative perjury between the defendant and his
witness).] [200: See 18 U.S.C. 6002 (2012).] [201: Id.] [202: See
id. (providing that a witnesss immunized testimony may be used
against him in a perjury prosecution).]
Finally, the last argument presented by those opposed to
defense-witness immunitythat use-immunity grants will impede future
prosecutions of the witnessalso fails.[footnoteRef:203] While this
argument may have prevailed when courts granted transactional
immunity,[footnoteRef:204] Congresss adoption of use immunity
renders this argument ineffective.[footnoteRef:205] The Supreme
Court has noted that there is little difference between a witness
invoking his Fifth Amendment privilege and being granted use
immunity, in that use immunity does not restrict the ability to
bring future charges any more so than invoking the Fifth
Amendment.[footnoteRef:206] While courts may consider the
governments interest in a possible future prosecution as a factor
against granting immunity to a defense witness, it must again be
emphasized that no governmental interest should per se outweigh a
defendants constitutional right to a fair trial.[footnoteRef:207]
In conclusion, the arguments against granting immunity, while
concrete and articulable, are unpersuasive and do not overcome a
defendants constitutional rights.[footnoteRef:208] [203: United
States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006).] [204:
Transactional immunity is immunity from prosecution for offenses to
which compelled testimony relates, whereas use immunity is full
immunity from the use of compelled testimony and evidence derived
therefrom. Kastigar v. United States, 406 U.S. 441, 443 (1972).]
[205: Compare Earl v. United States, 361 F.2d 531, 533 (D.C. Cir.
1966) (applying a transactional immunity statute, which allows a
witness to avoid prosecution for any crimes referenced on the
stand), with Ebbers, 458 F.3d at 11822 (2d Cir. 2006) (applying the
use immunity statute of 18 U.S.C. 6002, which restricts the amount
of immunity a witness receives to only providing that the witnesss
testimony will not be used against him in a future prosecution).]
[206: Kastigar, 406 U.S. at 462 (We conclude that the immunity
provided by 18 U.S.C. 6002 leaves the witness and the prosecutorial
authorities in substantially the same position as if the witness
had claimed the Fifth Amendment privilege.).] [207: See Govt of
V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980)(articulating an
approach to defense-witness immunity that can consider the
governments interest in denying immunity).] [208: See Lipanovich,
supra note 8, at 180, 19095 (deeming a defendants right to a fair
trial as more important than any possible arguments against grants
of immunity for defense witnesses).]
D. The Supreme Court Should Adopt the Ninth Circuit Approach
Because it Focuses on the Effect of the Prosecutors ActionsThe
Supreme Court should adopt an approach that accounts for the effect
of the prosecutors actions.[footnoteRef:209] In this regard, the
Supreme Court should adopt the Ninth Circuits broader view of
prosecutorial misconduct because it encompasses actions that have
the effect of distorting the fact-finding process as opposed to
only those that deliberately and intentionally distort
it.[footnoteRef:210] Straub demonstrates exactly the type of
problem that can arise from using the Second Circuits narrow and
restricted approach to prosecutorial misconduct.[footnoteRef:211]
In Straub, it would have been difficult for the defendant to prove
the prosecutor had the intent to distort the fact-finding process,
even though the prosecutors actions clearly had that
effect.[footnoteRef:212] Thus, under the Second Circuits approach,
the inability to prove intent on behalf of the prosecutor would
guarantee a denial of the defendants immunity
request,[footnoteRef:213] even though denying this request would
result in a due process violation because the defendant would not
be able to defend against the States accusations.[footnoteRef:214]
By shifting the focus from intentional prosecutorial misconduct to
the effects of the prosecutorial conduct, more defendant-adverse
scenarios can be accounted for and less infringement on defendants
rights will occur.[footnoteRef:215] [209: See id. at 195 (pointing
out the detrimental effects that prosecutorial misconduct can have
on a defendant).] [210: Compare Ebbers, 458 F.3d at 119 (requiring
that prosecutorial misconduct be shown by deliberate actions that
distort the fact-finding process), with United States v. Straub,
538 F.3d 1147, 1162 (9th Cir. 2008) (holding that prosecutorial
misconduct can be proven with actions that have the effect of
distorting the fact-finding process).] [211: See Straub, 538 F.3d
at 1155 (referring to the district courts ruling, which held that
if defendants were required to show prosecutorial misconduct, then
Straubs claim would be unsuccessful).] [212: Id. at 1157.] [213:
See id.; Lipanovich, supra note 8, at 186.] [214: Chambers v.
Mississippi, 410 U.S. 284, 29495 (1973).] [215: See Lipanovich,
supra note 8, at 195 (arguing that the effects of prosecutorial
misconduct can have far more detrimental effects to a defendant
than solely prosecutorial intent).]
Additionally, intentional prosecutorial misconduct should not be
a requirement under the defense-witness immunity approach that the
Supreme Court ultimately adopts.[footnoteRef:216] The Second
Circuits reliance on prosecutorial misconduct as a necessary
requirement in order for a defendant to receive a fair trial is
misplaced.[footnoteRef:217] Granting immunity to a defense witness
should be based upon whether the witnesss proffered testimony is
relevant and supports the defendants case.[footnoteRef:218] A
defense witnesss immunity, and the defendants due process rights,
should not be based on a defendants ability to prove a prosecutors
deliberate misconduct.[footnoteRef:219] Defense-witness immunity
grants should depend on the testimonys relevance and the effect of
the prosecutors actions (i.e., selective immunity or the effect of
distorting the fact-finding process).[footnoteRef:220] Since the
Ninth Circuits approach focuses on the effect of the prosecutors
actions, whereas the Third and Second Circuit approaches do not,
the Supreme Court should adopt the Ninth Circuits
approach.[footnoteRef:221] [216: See id. at 196 (Prosecutorial
misconduct should not be a requirement for the granting of
immunity.).] [217: See id. at 19596 (opining that one problem with
the Second Circuits approach is its reliance on prosecutorial
misconduct).] [218: See Straub, 538 F.3d at 1157 (requiring that
the defense witness seeking immunity have relevant testimony).]
[219: See id. at 1161 (The right to compel use immunity because of
selective denial of immunity is a right to due process... where the
Constitution focuses our attention on the fundamental fairness of
the trial more than on the intentionswhether good or badof the
prosecution.); Chambers, 410 U.S. at 294 (noting that a defendants
due process rights amount the ability to put on a full defense);
Lipanovich, supra note 8, at 19596 (arguing that a defendants due
process rights should be protected by an approach that grants
immunity to witnesses when the prosecutors misconduct has the
effect of distorting the fact-finding process).] [220: See Straub,
538 F.3d at 115658 (holding that a defendant is denied a fair trial
if the prosecution uses selective immunity, by granting immunity to
a government witness, but denies it to a defense witness whose
testimony directly contradicts that of the government witness, or
when the prosecutor commits misconduct that has the effect of
distorting the fact-finding process).] [221: See supra Part
V.B.]
E. The Ninth Circuit Approach Balances the Grants of Immunity
for Prosecutors and DefendantsThe Supreme Court should adopt the
Ninth Circuits approach because it creates the perfect balance
between granting immunity to prosecution and defense
witnesses.[footnoteRef:222] Opponents argue that a criminal
prosecution cannot be a place of equalized power because
prosecutors have many affirmative obligations.[footnoteRef:223]
Accordingly, these opponents readily reject any arguments advancing
the idea that there should be a more equal balance of power between
prosecutors and defendants.[footnoteRef:224] Despite these
counterarguments, the idea of equal power between the two sides
cannot be so easily rejected.[footnoteRef:225] [222: See Straub,
538 F.3d at 1157 (allowing courts to grant immunity for defense
witnesses instead of making the immunity grants dependent on the
prosecutors decisions).] [223: See United States v. Turkish, 623
F.2d 769, 774 (2d Cir. 1980).] [224: E.g., id.; see also United
States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978) (Due process
has never yet been held to require that the defendant be permitted
to marshal precisely the same investigative and legal resources as
the prosecution....).] [225: See Lipanovich, supra note 8, at 195
(Despite the various arguments against defense witness immunity...
none overcome the need to ensure a fair trial for every
defendant.).]
The Ninth Circuit approach acknowledges a power balance between
prosecutors and defendants, because it holds the prosecutors
accountable in grants and denials of immunity while it also
provides another way for defendants to get immunity for their
witnesses (i.e., grants of immunity by the court).[footnoteRef:226]
One of the ways the Ninth Circuits approach equalizes the power
imbalance is through its standard of proof.[footnoteRef:227] The
Ninth Circuits approach requires only that the testimony be
relevant, compared to clearly exculpatory and essential to the
defense.[footnoteRef:228] This standard still maintains that the
testimony be relevant and that it conflicts with an immunized
government witness, but lowers the standard from absolute terms
(e.g., clearly and essential).[footnoteRef:229] This provides a
defendant with another option to defend himself because a key
defense witness, who would never be granted immunity under the
Second or Third Circuits approaches, may be granted immunity under
the Ninth Circuit approach.[footnoteRef:230] The witness may have
testimony that is relevant or exculpatory, but this testimony would
not be allowed under the Second Circuit approach unless the
defendant could show intentional prosecutorial
misconduct.[footnoteRef:231] This same testimony would also be
barred under the Third Circuits approach because the testimony not
only has to be exculpatory and essential, but the governments
interests in not granting immunity can also override a grant of
immunity.[footnoteRef:232] Therefore, the Ninth Circuit is the best
approach because: it enables the defendant to put on a full
defense; provides the jury with more information to use during
their fact-finding process; and, under those circumstances, it is
more likely that the defendant receives a fair
trial.[footnoteRef:233] [226: See Straub, 538 F.3d at 1157
(providing for court-granted use immunity to defense witnesses
meeting certain criteria).] [227: Id. (providing a prosecutorial
misconduct approach to defense-witness immunity).] [228: Compare
id. (requiring only relevance), with United States v. Ebbers, 458
F.3d 110, 118 (2d Cir. 2006) (citations omitted) (employing a
prosecutorial misconduct approach which requires that testimony of
the witness be material, exculpatory and not cumulative), and Govt
of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980)(explaining that
the effective defense theory requires defense-witness immunity when
it is found that a potential defense witness can offer testimony
which is clearly exculpatory and essential to the defense case and
when the government has no strong interest in withholding use
immunity). This more flexible relevance standard predates Straub.
See United States v. Westerdahl, 945 F.2d 1083, 1086 (9th Cir.
1991).] [229: Lipanovich, supra note 8, at 180, 196.] [230: Compare
Straub, 538 F.3d at 1157 (requiring only relevance), with Ebbers,
458 F.3d at 118 (employing a prosecutorial misconduct approach
which requires that testimony of the witness be material,
exculpatory and not cumulative), and Smith, 615 F.2d at
974(explaining that the effective defense theory requires defense
witness immunity when it is found that a potential defense witness
can offer testimony which is clearly exculpatory and essential to
the defense case and when the government has no strong interest in
withholding use immunity).] [231: See Ebbers, 458 F.3d at 118
(using a prosecutorial misconduct approach which demands that the
witnesss testimony be material, exculpatory and not cumulative, and
that the defendant show that prosecutorial misconduct occurred).]
[232: See Smith, 615 F.2d at 974 (explaining that the Third
Circuits approach to defense-witness immunity requires testimony
that is is clearly exculpatory and essential to the defense case,
as well as it be a situation where the government has no strong
interest in withholding use immunity).] [233: See Lipanovich, supra
note 8, at 180, 18485.]
ConclusionIn order to ensure a defendants constitutional rights
are protected and not infringed upon, the Supreme Court should
adopt the Ninth Circuits defense-witness immunity approach. While
three approaches to defense-witness immunity have emerged, the
Second and Third Circuit approaches fail to address the paramount
interest at stakea defendants constitutional rights, especially the
right to a fair trial. The Second Circuits approach is too focused
on requiring the defendant to prove prosecutorial misconduct. The
Third Circuits approach has too high of a burden. Since both the
Second and Third Circuit approaches are inadequate, the Supreme
Court should adopt the approach formulated by the Ninth Circuit.
The Ninth Circuits approach is superior because it expands the idea
of prosecutorial misconduct, broadening the Second Circuits
definition, and provides only that the testimony be relevant, as
opposed to the stringent clearly exculpatory and material standards
set forth by the Third Circuit. While there may be concerns
regarding the expansion of defense-witness immunity, none of these
concerns override the defendants constitutional right to a fair
trial where the defendant can fully put on a defense. In order to
ensure a defendants due process rights are protected, the Supreme
Court must adopt the Ninth Circuits approach to defense-witness
immunity.
231