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Understanding what immunity does and doesn’t do

| Apr 30, 2021 | White Collar Crimes

If you’re under investigation or facing charges related to criminal activity, you may be able to obtain immunity from prosecution. This can help you avoid serious legal ramifications. 

Prosecutors typically grant immunity to people who have information that will help law enforcement charge and convict a “bigger fish” — someone whom they believe has committed a more serious crime. Immunity may be used in any type of criminal case. For example, it’s sometimes granted to low-level drug dealers to catch a major supplier. It can be used in white-collar criminal investigations to build a case against the person(s) who ordered and masterminded serious criminal activity.

Even if someone hasn’t been charged with a crime, they may be afraid to testify as a witness against someone because they might incriminate themselves. If federal or state prosecutors need their complete and honest testimony and don’t want someone to invoke their Fifth Amendment right against self-incrimination, they may offer immunity. People have been granted immunity to testify in court, before a grand jury and even before Congress.

Transactional vs. use immunity

There are two types of immunity. It’s essential to understand the differences between them.

Transactional immunity (also referred to as blanket or total immunity) is the more complete type. A person who’s granted transactional immunity can’t be prosecuted for their role in the criminal activity that’s the subject of their testimony. 

Note that transactional immunity doesn’t apply to any other crime a person may commit. If a person is granted immunity to testify in a white collar crime case and then they’re later suspected of killing their spouse, that immunity doesn’t apply.

Use immunity, which is also referred to by the U.S. Department of Justice as derivative use immunity, is more limited. If a witness gets use immunity, it means that their own testimony can’t be used to charge them. However, if law enforcement and investigators obtain independent evidence of their part in a crime, they can be prosecuted.

Offers of immunity, like plea deals, can help people avoid criminal charges that could haunt them forever. However, they need to be carefully negotiated by an experienced criminal defense attorney who knows how to work with prosecutors to get the best outcome for their client.