Federal Witness Immunity

What is Federal Witness Immunity?
In many cases, a district attorney as well as a federal prosecutor will be prepared to offer immunity to a person who witnessed a crime or has been charged with a crime when it can help them make a case against a suspect that they believe is more important to go after and attempt to convict. Once an immunity arrangement has been worked out, the prosecution will allow this person to provide evidence and/or information and then compel that person to testify against someone who has committed more significant offenses by the acceptance of the agreement.

For example, if you’re arrested for selling narcotics in a situation where the federal government has jurisdiction they may be eager to offer you immunity for your testimony against a bigger player in the scheme of things. Likewise in a federal murder case, the prosecution may offer immunity to someone who is facing lesser charges in the case to gain an advantage in prosecuting the principal suspect. An article that deals with this subject can be read on my blog by clicking here.

There are two types of immunity: transactional or blanket immunity, and use immunity (derivative use immunity). Transactional immunity is not used in federal cases.

So for the purpose of this informational page I’ll discuss the latter.

I cannot stress the importance of having a skilled federal defense attorney present as your adviser in meetings with the government before it is decided if an immunity agreement is the correct avenue for an accused participant of a federal investigation to assent to as an incentive for testifying against another defendant who may have been the main player or an involved participant that the government would rather pursue.

While “use” and/or “derivative use” immunity in federal cases prevents the prosecution from using the witness’s own testimony or any evidence resulting from the testimony of the witness against them in a court of law, there are still situations where although immunized against prosecution for their specific testimony, other variables may arise in the future that can give the prosecution ammunition to go after the witness nonetheless.

Within “use” and/or derivative use immunity, there are subsets that are critical to fully understand. Below it will be explained in its simplest terms; however it is important to understand that immunity of any type can be a complex issue which is why hiring a criminal defense attorney who focuses on federal cases is so essential.

The first type of these is called proffer letter immunity, also known as a king or queen for a day letter. In this situation, the government believes you may have something to offer their investigation and is willing to give you this type of immunity which will put the prosecution in a position where what you say can’t be used against you by them in an upcoming criminal trial or proceeding. However, there are two exceptions that can invalidate this agreement.

The first exception is that the government can still continue their investigation based on your testimony and if further undeniable evidence is uncovered that had nothing to do with what was offered under the immunity deal, they can now seek prosecution. An example of this would be if an individual testified in a drug trafficking case and named the principal of the investigation but failed to mention that they helped move or deliver the narcotics with the primary suspect. If their personal belongings (such as a photo ID) were later found with the drugs which were uncovered at a later time, the government can go after them based on the new evidence and the omission of that fact when the agreement was negotiated.

The second variable that could disqualify the proffer letter is if they were to later perjure the original statements made under the immunity agreement in a court of law. In other words, if the information they gave the government did not add up to what was said in court, the deal would be null and void, allowing further prosecution.

It is always important to understand that the government will always try to make their case against all participants of a federal crime so if they are able to impeach the testimony an individual provided when immunity was granted, all bets are off. It must be understood that proffer letter immunity is basically the weakest form of immunity.

The second type of immunity that can be granted to a participant of a federal investigation is characterized as letter immunity. Unlike proffer letter immunity, this type of protection negotiated between a knowledgeable federal defense attorney and the government gives an assurance that the testimony provided will not be held against their client in any way including if new evidence is uncovered based on their statements. It is basically a guarantee that protects you from being prosecuted for the same crime at a later date.

The strength of this agreement puts the advantage in the client’s favor as trying to negate the agreement would force the government to appear at an ethics hearing if they attempt to later prosecute the immunized individual for the crime in question. They’ll have to prove that any new evidence that’s been uncovered which they now want to attempt to use against them didn’t come from their original statements. The government cannot use a “win-at-any-cost” type of prosecution and must appear before a committee to override the letter immunity agreement. A prosecutor may also be sanctioned for prosecutorial misconduct if it is found that this attempt was without merit.

The strongest type of immunity is known as statutory immunity. In this case, a Federal District Court Judge was given a possible outline by the attorney of the person seeking this type of immunity displaying what may be said in front of a Grand Jury or at an actual federal trial. The judge is aware that this person is still protected under their legitimate Fifth Amendment right of remaining silent but is aware that they are willing to give up that right in exchange for their statements if an agreement can be ironed out. If this agreement can be achieved, nothing said can be used against that person directly or indirectly and the government can simply not proceed in looking for new evidence that may implicate that person in the future. In a sense, it’s the closest thing to transactional or blanket immunity on federal level that can be negotiated.

How do you know if the crime you are charged with is federal?

If an arrest takes place by any agents of a federal agency such as the FBI, ATF, or others, most likely the charges will be federal. Even if an arrest is made by state police or law enforcement of a local jurisdiction, a crime may be pursued by the federal government for varying reasons.

If any felony is committed where the criminal action takes place in the process of crossing state lines the federal government will have jurisdiction for prosecution. The federal government can also bring charges by simply providing some evidence that the crime has affected interstate commerce. This will also be the case if the crime occurs on federal land, such as a park recognized as federal property. There are also many crimes that are usually taken on by the government such as civil rights violations, hate crimes, crimes against children, art theft as well as many others. According to federalcharges.com there are currently 121 federal crimes that can be viewed by clicking here.

If any of these scenarios apply to you, a friend, associate, or loved one it is essential to hire an experienced Fort Lauderdale based federal criminal defense attorney at the earliest possible time. Call right now to set up an appointment for a free case evaluation.

How my Law Firm Can Help
The Federal Criminal Defense Law Firm of Michael B. Cohen, Esq. has successfully defended his client’s Constitutional rights in Fort Lauderdale, Miami-Dade, and the Palm Beaches as well as many other areas throughout the State of Florida for federal charges brought forward by the government over a period of almost forty years. He is a tough experienced litigator that will always put the government to the test when criminal allegations are filed against his clients.

One question any prospective client who is charged with a federal crime should ask is: can any criminal defense lawyer defend them in a federal criminal case? The answer to this question is yes, however, will an attorney without tested experience in federal trials and courtroom procedures be effective in returning the best results for them? The answer to that question is most likely no. My law firm is dedicated to providing the best competent representation in federal court and has the seasoned experience to do so.

Federal laws have numerous differences to those of the individual states including the federal rules of criminal procedure, as well as the federal sentencing guidelines among many others which only apply to federal laws and may not be known in detail by the many excellent lawyers that practice law in the Fort Lauderdale area.

It is important to understand that the great majority of federal criminal cases never go to trial as most are resolved by an agreement between the government and the defendant’s chosen advocate. In many cases, these “plea deals” are usually the best outcome a defendant can hope for based on the hard facts and evidence in the possession of the prosecution. The earlier in an investigation that you hire a qualified federal criminal attorney, the more equipped they will be to attack the government’s case with all legal methods available to them.

The laws and procedures in Federal Court can differ greatly from those of state court. If you hire an attorney who is not experienced in the federal legal system, you are opening up the possibility of errors being made including the waiving of certain rights without your understanding.

With close to forty years in the federal legal field working as an Assistant United States Attorney prosecuting cases for the government and for more than the past fifteen years practicing as a criminal defense attorney in South Florida, my law office specializes in federal criminal defense and is the proper choice to fight all allegations of these crimes when accused by the federal government.

To view all of my qualifications and understand what should be done next if there are questions relating to your rights, or invoking all other Constitutional protections, click here.

*Time tested federal criminal defense in Miami, Fort Lauderdale and the Palm Beaches as well as all the neighboring counties in the surrounding areas of South Florida.