Field: Defense Witnesses Need Immunity Too

2015 Circui t Sp l i t on Def ense -Witness Immuni ty 231

Defense Witnesses Need Immunity Too: Why the Supreme Court Should Adopt

the Ninth Circuits Approach to Defense-Witness Immunity

ALISON M. FIELD*

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).

* 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.


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.

INTRODUCTION

icture this scenario: you are charged with committing a crime and the government puts a witness on the stand who provides essential testimony against you.1 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.2 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.3 As a result the jury hears only one side of the storythe governments.4

[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.5 With all the money, power, and witnesses at its disposal, it is hard to see how the government ever loses a case.6 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. 6002.7 Still, in criminal cases, courts across the United States are reluctant to grant immunity to defense witnesses.8 Prosecutors also have

1 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). 2 See id. at 108586. 3 See id. 4 See id. at 1087. 5 Id. (quoting United States v. Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984)). 6 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). 7 See 18 U.S.C. 6002 (2012). 8 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).

P


the power to provide immunity to defense witnesses, but not surprisingly, they rarely ever exercise that power.9 Thus, defendants are prevented from presenting a complete defense when a possible witnesswith exculpatory evidence or statements that could impeach the prosecutions witnessis unavailable.10

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.11

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,12 focuses on the effect of the prosecutors actions,13 and balances grants of immunity for prosecutors and defendants.14

9 See JULIE R. OSULLIVAN, FEDERAL WHITE COLLAR CRIME: CASES AND MATERIALS 87478

(4th ed. 2009). 10 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). 11 Id. at 1162. 12 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). 13 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). 14 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. Background

A. The Importance of the Unsettled Area of Defense-Witness Immunity Statutes

In 1956, the Supreme Court recognized the importance of immunity statutes and declared that statutes granting immunity ha[ve] become part

of our constitutional fabric.15 Every state has enacted a use-immunity statute, and Congress has passed over forty immunity statutes on the federal level.16 The use-immunity statute, 18 U.S.C. 6002,17 provides federal prosecutors with the ability to grant witnesses immunity, but does not grant defendants equivalent power.18 Thus, courts have attempted to resolve this inequity in two ways, by either: (1) directly granting witnesses immunity;19 or (2) threatening to dismiss the prosecutions case if it does not provide immunity for defense witnesses.20 As state and federal courts attempt to reconcile this unsettled area of law, the division in approaches has only increased.21 However, the Supreme Court has yet to decide when a defendant is entitled to obtain immunity for witnesses.22

15 Ullmann v. United States, 350 U.S. 422, 438 (1956). 16 Murphy v. Waterfront Commn, 378 U.S. 52, 94 (1964) (White, J., concurring), overruled in

part on other grounds by United States v. Balsys, 524 U.S. 666 (1998). 17 18 U.S.C. 6002 (2012) (providing that an immune witnesss testimony will not be used

against the witness in a future prosecution). 18 See id. 19 See 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). However, only

the Third Circuit has taken this approach. See 33A FEDERAL PROCEDURE: LAWYERS EDITION

80:301 (2014) [hereinafter FEDERAL PROCEDURE]. 20 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.) (citing United States v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir.

1988)). 21 See United 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). 22 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 Witnesses

While 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.23 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;24 and (2) protect the defendants constitutional rights.25

1. Balancing Power to Ensure a Fair and Just Trial

The 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.26 Defense-witness immunity can uncover the truth and prevent the incarceration of innocent defendants.27 The U.S. Attorney Manual is a Department of Justice internal reference guide that provides the controlling policies and procedures for U.S. Attorneys.28 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.29 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.30

Although compelled testimony often plays an important part in obtaining a successful result in criminal prosecutions,31 courts frequently reject the idea that there is a power imbalance between prosecutors and

23 Lipanovich, supra note 8, at 185. 24 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.). 25 Lipanovich, supra note 8, at 185. 26 See id. at 18689. 27 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (stressing that societys interest in trials

extends beyond convicting the guilty). 28 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/. 29 OSULLIVAN, supra note 9, at 877 n.4 (quoting id. at 9-23.214). 30 Lipanovich, supra note 8, at 18889. 31 See Kastigar 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).


defendants.32 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).33 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.34 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.35

2. Protecting Constitutional Rights

The second argument in favor of granting defense-witness immunity focuses on protecting a defendants constitutional rights.36 Typically, legal commentators rely upon constitutional arguments to advance their ideas, and the area of defense-witness immunity is no exception.37 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.38 Further support for defense-witness

32 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 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 . . . .). 33 Turkish, 623 F.2d at 774; see also Herman, 589 F.2d at 1203. 34 Lipanovich, supra note 8, at 19091. 35 United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991) (quoting United States v.

Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984)). 36 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). 37 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). 38 Estelle v. Williams, 425 U.S. 501, 503 (1976) (concluding that the right to a fair trial is a


immunity is found in various parts of the Constitution, as well as Supreme Court precedent.39

The Sixth Amendment supports defense-witness immunity.40 The Sixth Amendment states, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.41 In Washington v. Texas, the Supreme Court detailed the Sixth Amendments importance with respect to a defendants case and stated:

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.42

The Supreme Court went further and declared, [t]his right is a fundamental element of due process of law.43

The Due Process Clauses of the Fifth and Fourteenth Amendments also support defense-witness immunity.44 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.45 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.46 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.47 In either situation, the defendants due process rights are

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). 39 See Lipanovich, supra note 8, at 18591 (referencing Supreme Court cases and

constitutional amendments that support granting defense-witness immunity). 40 See U.S. CONST. amend. VI. 41 Id. 42 388 U.S. 14, 19 (1967). 43 Id. 44 See U.S. CONST. amend V, XIV. 45 410 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). 46 See United States v. Straub, 538 F.3d 1147, 1155 (9th Cir. 2008). 47 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


violated because the court and the jury will not hear the relevantand sometimes exculpatorytestimony.48

II. The Circuit Split: How to Approach Defense-Witness Immunity

Although every circuit court has ruled on the issue of defense-witness immunity, the courts are split on how specifically to deal with it.49 Three prominent approaches have surfaced: (1) the Third Circuits effective defense theory; (2) the Second Circuits prosecutorial misconduct majority50 approach; and (3) the Ninth Circuits prosecutorial misconduct minority51 approach.52 However, under any of these judicial approaches, it is very rare for a defendant to receive immunity for a key witness.53

A. The Third Circuits Effective Defense Theory

1. Government of Virgin Island v. Smith

In Government of Virgin Island v. Smith, the Third Circuit adopted an approach to defense-witness immunity called the effective defense theory.54 In Smith, four defendants were on trial for robbing Roy Phipps (Phipps).55 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.56 One defendant, Elvis Smith (Elvis), was known as

invoked the Fifth Amendment when he took the stand). 48 See Straub, 538 F.3d at 1155; Smith, 615 F.2d at 967. 49 See infra Part II.AC. 50 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. 51 The Ninth Circuits prosecutorial misconduct approach is the minority one since most of

the circuit courts use the Second Circuits approach. Id. 52 See infra Parts IIIV. 53 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.). 54 See 615 F.2d 964, 96974 (3d Cir. 1980) (formulating the effective defense theory of

defense-witness immunity). 55 Id. at 966. 56 Id. at 96667. The nicknames used by Sanchez for the other perpetrators of the crime


Scotto.57 Therefore, Sanchezs statement would have exculpated the other three defendants,58 but would have incriminated Elvis.59

At trial, the defendants called Sanchez as a witness, hoping that his testimony would reveal his previous statement to the police.60 However, Sanchez was uncooperative and asserted the Fifth Amendment privilege against self-incrimination.61 The defendants attempted to introduce the statement by declaring Sanchez an unavailable witness under an exception to the hearsay rule.62 The government argued that it would be unable to cross-examine Sanchez under those circumstances.63 The trial court agreed and did not admit Sanchezs previous statement to the police.64

The defendants then requested a grant of immunity for Sanchez.65 An authority in the Virgin Island Attorney Generals office agreed to provide immunity for Sanchez as long as the U.S. Attorney consented.66 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.67 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.68

2. The Third Circuits Effective Defense Theory

The Smith court acknowledged that withholding exculpatory facts from the jury violates a defendants due process rights.69 The Third Circuit understood that a courts power to grant judicial immunity must be

were not nicknames for three of the defendants. Id. 57 Id. 58 Collectively these three defendants will be referred to as the defendants, whereas the

fourth defendant, Elvis Smith, will be referred to as Elvis. 59 Smith, 615 F.2d at 967. 60 Id. 61 Id. 62 Id. 63 Id. 64 Id. 65 Smith, 615 F.2d at 967. 66 Id. 67 Id. 68 Id. 69 Id. at 970.


limited.70 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.71

The Third Circuits approach relies heavily on the third and fourth requirements that the witness testimony must be clearly exculpatory and essential.72 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.73 Ultimately, the Third Circuit was attempting to create a new remedy to protect an established righta defendants right to present an effective defense.74 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.75 Thus, the effective defense theory was born.76

B. The Second Circuits Prosecutorial Misconduct Majority Approach

The Second Circuits approach focuses on prosecutorial misconduct.77 Not surprisingly, every circuit court allows at least the limited availability of defense witness immunity if prosecutorial misconduct can be shown.78

1. United States v. Ebbers

Ebbers was the Chief Executive Officer of the publicly traded

70 Id. at 972. 71 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). 72 Smith, 615 F.2d at 972. 73 Id. 74 Id. at 971. 75 Id. 76 See id. at 972. 77 See infra Part II.B (referring to the Second Circuit, or prosecutorial misconduct majority

approach). 78 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.


company, WorldCom, Inc. (WorldCom).79 Between the end of 2000 and the beginning of 2002, Ebbers concealed WorldComs decline in performance by fabricating the companys financial records.80 At trial, Ebbers was convicted of conspiracy, securities fraud, and related crimes and sentenced to twenty-five years in prison.81 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.82 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.83

2. Ebbers Prosecutorial Misconduct Majority Approach

In Ebbers, the Second Circuit drew on its previous decision in United States v. Burns84 and set forth the test for determining whether the extent of the prosecutorial misconduct warrants the grant of defense witness immunity.85 In doing so, the court stated that such a decision requires considering whether:

(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.86

The Second Circuits approach is a two-prong test.87 Essential to this approach is that there must be some type of prosecutorial misconduct or governmental abuse.88 Prosecutorial misconduct can occur in two ways: (1) if the prosecutor grants immunity to the prosecution witness and denies

79 United States v. Ebbers, 458 F.3d 110, 112 (2d Cir. 2006). 80 Id. 81 Id. 82 Id. 83 Id. at 117. 84 United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982) (inspiring the Second Circuits

approach to defense-witness immunity in Ebbers) . 85 See Ebbers, 458 F.3d at 118; Burns, 684 F.2d at 1077. 86 Burns, 684 F.2d at 1077. 87 Ebbers, 458 F.3d at 119. 88 Id.


immunity to the defense witness with the intent of distorting the fact-finding process;89 and (2) if the prosecutor threatens or badgers a potential defense witness in order to discourage him from testifying.90 Showing either form of prosecutorial misconduct satisfies the first prong of the Second Circuits approach.91 Although, denying immunity to one witness while granting immunity to another does not amount to prosecutorial overreaching per se.92 Similarly, there is no prosecutorial overreach when the immunity-seeking witness is a target for future prosecution.93 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.94

C. The Ninth Circuits Prosecutorial Misconduct Minority Approach

The Ninth Circuit also focuses on prosecutorial misconduct in its approach to defense-witness immunity,95 and it has been coined the prosecutorial misconduct minority approach.96 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.97 Straub clarified how courts in the Ninth Circuit should approach defense-witness immunity.98

89 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). 90 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). 91 Blissett v. Lefevre, 924 F.2d 434, 442 (2d Cir. 1991). 92 See id. 93 Shandell, 800 F.2d at 324; see United States v. Turkish, 623 F.2d 769, 778 (2d Cir. 1980). 94 Ebbers, 458 F.3d at 118. 95 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). 96 See id. at 1162. Throughout this Note, this approach will be referred to as the Ninth

Circuit Approach. 97 Lipanovich, supra note 8, at 183 (emphasis in original). 98 538 F.3d at 1162.


1. United States v. Straub

In United States v. Straub, police executed a search warrant and arrested Straub at his home.99 There, police uncovered marijuana plants and selling bags.100 The police investigation discovered that Straub was involved in a wide-ranging and long-standing conspiracy to manufacture and distribute methamphetamine.101 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.102 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.103 Straub purportedly discharged a gun during this robbery.104 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 . . . .105

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).106 The defense knew Baumann would assert his Fifth Amendment privilege against self-incrimination.107 The court did not grant immunity under the use-immunity statute, and Straub was convicted and sentenced to 272 months in prison.108

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.109 The Ninth Circuit agreed and remanded the case, ordering the district court to enter a judgment of

99 Id. at 114849. 100 Id. at 1149. 101 Id. 102 Id. 103 Id. 104 Straub, 538 F.3d at 1149. 105 Id. Robert Garrett was shot during the attempted robbery. Id. 106 Id. at 1150. 107 Id. 108 Id. at 1151; see 18 U.S.C. 6002 (2012). 109 Straub, 538 F.3d at 1151.


acquittal on the shooting charges unless the prosecution granted immunity to Baumann or did not use Adamss testimony on retrial.110

2. Straubs Prosecutorial Misconduct Minority Approach

In Straub, the Ninth Circuit created a new test for defense-witness immunity.111 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;112 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.113 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.114

ANALYSIS

The Third, Second, and Ninth Circuit approaches to defense-witness immunity demonstrate the various competing interests at play during a criminal trial.115 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.116 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.117

110 Id. at 1166. 111 See id. 112 Id. 113 Id. 114 Id. 115 See supra Part II. 116 See supra Parts II.A.2 C. 117 See infra Part V.


III. Analysis of the Third Circuit Approach and the Problems with Applying It

A. The Reasoning Behind the Third Circuit Approach

As previously discussed, the Third Circuit approach, or the effective defense theory, was derived from Government of Virgin Islands v. Smith.118 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.119 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.120 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.121 It deemed the empowerment of federal courts to grant immunity consistent with other remedies where due process violations have occurred.122 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.123

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.124 However, it created insurmountable requirements and thus failed to achieve its goal.125 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.126 This is a challenging

118 See 615 F.2d 964, 972 (3d Cir. 1980); see also supra Part II.A. 119 See United States v. Pennell, 737 F.2d 521, 526 (6th Cir. 1984). 120 See Smith, 615 F.2d at 969. 121 Pennell, 737 F.2d at 527. 122 See Smith, 615 F.2d at 971 (discussing high-profile cases granting new trials to protect a

defendants due process rights). 123 See infra Part III.B (analyzing the problems with the Third Circuit approach). 124 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). 125 See Angiulo, 897 F.2d at 1191; Smith, 615 F.2d at 972. 126 Smith, 615 F.2d at 969. This is the main difference between the Third Circuit approach


burden to meet.127 In fact, only five of the forty-six reported decisions from the Third Circuit sided with the defense.128 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.129 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.130 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.131 The fact that courts in the Third Circuit seldom grant immunity to criminal defendants clearly demonstrates that this approachs requirements are unattainable.132

B. The Problems Presented by the Third Circuits Approach

There are three major problems presented by the Third Circuits effective defense theory: (1) it creates a separation of powers issue;133 (2) it requires judges to conduct a balancing test;134 and (3) it places a high burden on defendants.135

Courts have been reluctant to adopt the Third Circuits effective defense approach to defense-witness immunity for a number of reasons.136 First, is the separation-of-powers dilemma.137 The separation-of-powers

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). 127 Lipanovich, supra note 8, at 181 (discussing defendants difficulty in meeting these

requirements). 128 Id. 129 See id. 130 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. 131 Smith, 615 F.2d at 973. 132 See Lipanovich, supra note 8, at 181. 133 Smith, 615 F.2d at 971. 134 See Lipanovich, supra note 8, at 196. 135 See id. 136 United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991); see FEDERAL PROCEDURE,

supra note 19. 137 Smith, 615 F.2d at 97172; see FEDERAL PROCEDURE, supra note 19.


doctrine is a constitutional notion that the three branches of government have different powers and functions.138 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.139 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.140 Courts frequently decline to adopt this approach because of the separation of powers problems.141 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.142

Another reason courts criticize the effective defense theory is because it requires judges to conduct a balancing test.143 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.144 This argument is unsound because at no point should prosecutorial interests outweigh a defendants constitutional right to a fair trial.145 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.146 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.147 This argument is

138 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. 139 United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990). 140 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). 141 See Mohney, 949 F.2d at 1401. 142 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). 143 See Angiulo, 897 F.2d at 1191. 144 Id.; see United States v. Turkish, 623 F.2d 769, 77577 (2d Cir. 1980). 145 Lipanovich, supra note 8, at 197 (emphasis added). 146 Id. 147 See Govt of V.I. v. Smith, 615 F.2d 964, 972 (3d Cir. 1980); Lipanovich, supra note 8, at


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.148

Finally, the Third Circuits effective defense theory has been criticized because of the high burden it places on defendants.149 The standard requiring the witnesss testimony to be both essential and clearly exculpatory is too challenging for defendants.150 This high burden is also problematic because it does not provide enough protection for a defendants rights.151 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.152 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.153

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;154 (2) it wrongly focuses on the prosecutors intent;155 and (3) courts are reluctant to find prosecutorial misconduct.156

The Second Circuits approach to defense-witness immunity presents a number of problems.157 The biggest issue with the Second Circuits approach arises from the high burden of proof a defendant must meet.158 A

197. 148 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). 149 Lipanovich, supra note 8, at 196; see supra Part III.B. 150 Lipanovich, supra note 8, at 196; see Smith, 615 F.2d at 972. 151 Lipanovich, supra note 8, at 196. 152 See id. 153 See supra Part III.B. 154 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). 155 See Lipanovich, supra note 8, at 194. 156 Id. at 196 (noting that [prosecutorial misconduct] has never been found under the

[Second Circuit]s test for defense witness immunity). 157 See id. at 183 (pointing out potential problems with the Second Circuits prosecutorial

misconduct approach). 158 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


defendant is required to show more than just that the witness unquestionably has exculpatory and material evidence not available from any other source.159 A defendant is required to make an additional showing that the prosecutors actions were deliberate and discriminatory.160 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.161 This causes courts to erroneously focus on the prosecutors intent.162 This approach will often be an ineffective and inadequate means to ensure a defendants right to a fair trial is met.163 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.164

Finally, the Second Circuits approach fails because federal courts rarely find prosecutorial misconduct.165 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.166 Similar to the Third Circuit, the Second Circuit approach is flawed because it fails to accomplish its purported goal.167 While it attempts to preserve a defendants constitutional rights, the Second Circuit approach regularly sides with the prosecution, thus indirectly diminishing the defendants rights.168

Second Circuit). 159 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) (quoting Govt of V.I. v. Smith, 615 F.2d 964, 969 (3d Cir. 1980)). 160 Ebbers, 458 F.3d at 119. 161 See id; Lipanovich, supra note 8, at 183. 162 See Lipanovich, supra note 8, at 194. 163 See, e.g., Ebbers, 458 F.3d at 119. 164 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). 165 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). 166 Chambers v. Mississippi, 410 U.S. 284, 294 (1973). 167 See supra Part III. 168 See Lipanovich, supra note 8, at 196.


V. The Supreme Court Should Adopt the Ninth Circuit Approach

While 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.169 The Ninth Circuit approach is the best way to address defense-witness immunity because it is more lenient,170 focuses on the effect of the prosecutors actions,171 and balances grants of immunity for prosecutors and defendants.172 Accordingly, the Supreme Court should address the issue of defense-witness immunity and adopt the Ninth Circuits superior approach.173

A. The Supreme Court Is the Correct Forum to Address the Issue of Defense-Witness Immunity

The Supreme Courtrather than the legislatureshould address defense-witness immunity.174 On many occasions, the Supreme Court has created important rights for criminal defendants, including the Miranda right against self-incrimination.175 As a result of criminal defendants marginal place in society, an elected Congress will not represent their interests.176 The constitutional foundation for courts to make or implement protections for criminal defendants is found in both the Fifth and

169 See supra Parts IIIIV. 170 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). 171 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). 172 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). 173 See supra Part V. 174 See Lipanovich, supra note 8, at 197 (arguing that the Supreme Court, and not Congress,

should create the defense immunity right). 175 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). 176 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).


Fourteenth Amendment Due Process Clauses.177 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.178 Accordingly, the Supreme Court must take the responsibility to ensure criminal defendants rights are protected and address the issue of defense-witness immunity.179

B. The Ninth Circuit Presents the Best Approach to Defense-Witness Immunity

The Ninth Circuits more lenient prosecutorial misconduct approach presents the best answer for defense-witness immunity.180 Under the Ninth Circuit approach to defense-witness immunity a defendant is required to show that the immunity-seeking witnesss testimony is relevant.181 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.182 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.183 This makes the Ninth Circuit approach superior because it offers two ways whereby defendants can obtain immunity for these witnesses.184

177 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.). 178 See United 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). 179 More specifically the Supreme Court should adopt the Ninth Circuits approach to

defense witness immunity. See infra Part V.BE. 180 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). 181 Straub, 538 F.3d at 1162. 182 Id. 183 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). 184 See Straub, 538 F.3d at 1162.


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.185

C. The Ninth Circuit Approach Is More Lenient in Application

The Supreme Court should adopt the Ninth Circuit approach because it is more lenient.186 This leniency ensures that more defendants have the opportunity to meet the requirements and obtain a fair trial.187 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.188

Opponents of defense-witness immunity have presented a number of arguments,189 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.190 However, the arguments advanced against defense-witness immunity are unpersuasive because of the important rights that immunity protects.191

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.192 Courts have interpreted this language, many concluding that [w]hile use immunity for defense

185 Compare id. at 116162, with Ebbers, 458 F.3d at 119. 186 Compare Straub, 538 F.3d at 1162, with Ebbers, 458 F.3d at 119. 187 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). 188 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). 189 See id. at 180, 190 (addressing the various arguments against defense-witness immunity). 190 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). 191 See Ullmann v. United States, 350 U.S. 422, 438 (1956) (emphasizing the importance

immunity statutes have in the constitutional landscape). 192 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).


witnesses may [ ] be desirable . . . [those in favor of defense witness immunity] must address their arguments to Congress, not the courts.193 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.194 These arguments fail because:

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.195

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.196 In this way, if courts recognize that immunity should exist, they cannot also claim separation of powers problems when reconciling unfair judicial practices.197

Opponents also argue that defense-witness immunity will cause witnesses to lie and perjure themselves in order to get a friend or accomplice acquitted.198 While this concern has muster, it is without merit because this type of situation was directly addressed in the use-immunity statute.199 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.200 This eliminates any type of cooperative-perjury argument since a witness who provides false testimony under the use immunity

193 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). 194 United States v. Moussaoui, 382 F.3d 453, 468 (4th Cir. 2004). 195 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). 196 Lipanovich, supra note 8, at 180, 191. 197 See id. 198 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). 199 See 18 U.S.C. 6002 (2012). 200 Id.


statute may still be prosecuted for perjury.201

Finally, the last argument presented by those opposed to defense-witness immunitythat use-immunity grants will impede future prosecutions of the witnessalso fails.202 While this argument may have prevailed when courts granted transactional immunity,203 Congresss adoption of use immunity renders this argument ineffective.204 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.205 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.206 In conclusion, the arguments against granting immunity, while concrete and articulable, are unpersuasive and do not overcome a defendants constitutional rights.207

D. The Supreme Court Should Adopt the Ninth Circuit Approach Because it Focuses on the Effect of the Prosecutors Actions

The Supreme Court should adopt an approach that accounts for the effect of the prosecutors actions.208 In this regard, the Supreme Court

201 See id. (providing that a witnesss immunized testimony may be used against him in a

perjury prosecution). 202 United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006). 203 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). 204 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). 205 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.). 206 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). 207 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). 208 See id. at 195 (pointing out the detrimental effects that prosecutorial misconduct can


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.209 Straub demonstrates exactly the type of problem that can arise from using the Second Circuits narrow and restricted approach to prosecutorial misconduct.210 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.211 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,212 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.213 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.214

Additionally, intentional prosecutorial misconduct should not be a requirement under the defense-witness immunity approach that the Supreme Court ultimately adopts.215 The Second Circuits reliance on prosecutorial misconduct as a necessary requirement in order for a defendant to receive a fair trial is misplaced.216 Granting immunity to a defense witness should be based upon whether the witnesss proffered testimony is relevant and supports the defendants case.217 A defense

have on a defendant). 209 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). 210 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). 211 Id. at 1157. 212 See id.; Lipanovich, supra note 8, at 186. 213 Chambers v. Mississippi, 410 U.S. 284, 29495 (1973). 214 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). 215 See id. at 196 (Prosecutorial misconduct should not be a requirement for the granting of

immunity.). 216 See id. at 19596 (opining that one problem with the Second Circuits approach is its

reliance on prosecutorial misconduct). 217 See Straub, 538 F.3d at 1157 (requiring that the defense witness seeking immunity have

relevant testimony).


witnesss immunity, and the defendants due process rights, should not be based on a defendants ability to prove a prosecutors deliberate misconduct.218 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).219 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.220

218 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). 219 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). 220 See supra Part V.B.


E. The Ninth Circuit Approach Balances the Grants of Immunity for Prosecutors and Defendants

The Supreme Court should adopt the Ninth Circuits approach because it creates the perfect balance between granting immunity to prosecution and defense witnesses.221 Opponents argue that a criminal prosecution cannot be a place of equalized power because prosecutors have many affirmative obligations.222 Accordingly, these opponents readily reject any arguments advancing the idea that there should be a more equal balance of power between prosecutors and defendants.223 Despite these counterarguments, the idea of equal power between the two sides cannot be so easily rejected.224

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).225 One of the ways the Ninth Circuits approach equalizes the power imbalance is through its standard of proof.226 The Ninth Circuits approach requires only that the testimony be relevant, compared to clearly exculpatory and essential to the defense.227 This standard still maintains that the testimony be relevant and that it conflicts with an immunized government witness, but lowers the standard from absolute

221 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). 222 See United States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980). 223 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 . . . .). 224 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.). 225 See Straub, 538 F.3d at 1157 (providing for court-granted use immunity to defense

witnesses meeting certain criteria). 226 Id. (providing a prosecutorial misconduct approach to defense-witness immunity). 227 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).


terms (e.g., clearly and essential).228 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.229 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.230 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.231 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.232

CONCLUSION

In 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

228 Lipanovich, supra note 8, at 180, 196. 229 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). 230 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). 231 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). 232 See Lipanovich, supra note 8, at 180, 18485.


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.

Documents

Field: Defense Witnesses Need Immunity Too