If a prosecutor believes that a witness impermissibly invoked the Fifth Amendment before a grand jury, he can request the judge overseeing the grand jury or trial to require the witness answer the question. United States v. DiMauro, 441 F.2d 428 (8th Cir. 1971). This is what has happened with the Harris County Assistant District Attorney who was subpoenaed to testify recently at a grand jury investigating possible crimes that District Attorney’s office may have been involved in. The problem is that the grand jury witness, if she properly invokes the Fifth Amendment, cannot be required to answer questions that would incriminate her.

In Texas courts, the prosecutor can offer immunity. There are two common types of immunity in these instances: transactional immunity and use immunity. Transactional immunity, sometimes referred to as blanket immunity, protects you from being prosecuted for the crime for which you are testifying. Use immunity, however, only precludes your own testimony being used against you, but does not protect you against the testimony of other witnesses in any future prosecution. The general rule is that a trial court has no power to grant immunity without approval by the state. Fuentesv. State, 622 S.W.2d 19 (Tex. App.–Houst. [1st] 1983).

Kastigar v. United States, 406 U.S. 441 (1972), was a Supreme Court decision that ruled on the issue of whether the government’s grant of immunity from prosecution can compel a witness to testify over his assertion of the Fifth Amendment privilege against self-incrimination.

In a 5-2 decision (Justices Brennan and Rehnquist took no part in the consideration of the case), the Court held that the government can overcome a claim of Fifth Amendment privilege by granting a witness “use and derivative use” immunity in exchange for his testimony.

In this case, Petitioners were subpoenaed to appear before a United States grand jury in the Central District of California on February 4, 1971. The Government believed that petitioners were likely to assert their Fifth Amendment privilege. Prior to the scheduled appearances, the Government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U.S.C. § 6003(a). Petitioners opposed issuance of the order, contending primarily that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination, and therefore was not sufficient to supplant the privilege and compel their testimony.

The District Court rejected this contention, and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity.

Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury’s questions, notwithstanding the grant of immunity. The court found both in contempt, and committed them to the custody of the Attorney General until either they answered the grand jury’s questions or the term of the grand jury expired. The Court of Appeals for the Ninth Circuit affirmed (406 U.S. 441, 443). The Supreme Court granted certiorari to resolve the important question whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom (“use and derivative use” immunity), or whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates (“transactional” immunity).

The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as provided by 18 U.S.C. § 6002, from use of the compelled testimony and evidence derived therefrom in subsequent criminal proceedings, as such immunity from use and derivative use is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege. Transactional immunity would afford broader protection than the Fifth Amendment privilege, and is not constitutionally required. In a subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony.

Remember: if you have any doubt whether you need a criminal defense attorney in Houston Texas, you should not hesitate to seek one. Call me at 713-227-4444 or email me if you have any questions about your Fifth Amendment rights. I am available for free consultations.