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Immunity - A State Grant of Amnesty

NCJ Number
Criminal Law Bulletin Volume: 17 Issue: 3 Dated: (May/June 1981) Pages: 234-240
M W McLane
Date Published
7 pages
This article highlights the law of self-incrimination and the granting of immunity from prosecution.
The self-incrimination exemption provision of the fifth amendment protects a person from being compelled to be a witness against himself. The fifth amendment is applicable to testimony only and does not apply to incriminating disclosures obtained by means other than the employment of legal process against an individual as a witness. Incriminating evidence obtained in violation of the fifth amendment is subject to rejection in any proceeding in which the witness from whom it was obtained is tried. The privilege against compulsory self-incrimination may be waived. Because the privilege against self-incrimination protects only against the legal consequences of an act, it ceases to exist when the witness can no longer be prosecuted or punished for the offense disclosed. Immunity from prosecution is a legislative creation in answer to an individual's claim of fifth amendment privilege; it is a State grant of amnesty in exchange for information. The two common forms of immunity are use immunity and transactional immunity. Use immunity provides the grand jury witness with protection from prosecution emanating from the use of grand jury testimony and all information derived therefrom. Transactional immunity accords full protection from prosecution for the offenses to which the compelled testimony relates. As such, it affords the witness broader protection than does the fifth amendment. Regardless of the particular type of immunity provided, such protection safeguards only against past and not future violations. The article includes 29 footnotes.