How Immunity Works in a Federal Criminal Case

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How Immunity Works in a Federal Criminal Case


You hear it on crime shows all the time. A defendant stares meaningfully at a law enforcement officer who is trying to get information from him. The defendant says: “I want immunity.”

In TVland, the defendant almost always gets immunity, and the law enforcement officers charge off after the big fish bad guy. On television shows, immunity always means the character won’t be prosecuted. They’ll probably enter the witness protection program.

Television is not real life. Some forms of immunity don’t protect you from prosecution at all. 

Here’s what you need to know.

Use and Derivative Immunity 

This form of immunity is also known as proffer immunity or proffer letter immunity. It is the weakest form of immunity you can receive. 

You and the federal prosecutor sign a written agreement that states you’ll give the prosecutor all the information about the case you have, and they won’t use it against you at any stage during the case. 

The government may still use your information to collect further evidence against you. They may still charge you with other crimes related to that evidence or with the same crime if your statement leads them to new physical evidence they didn’t have before. 

If you contradict your statement later, in court, this form of immunity may also be used against you. 

Transactional Immunity 

Transactional immunity is stronger. It prevents you from being charged on any matter related to your testimony. Prosecutors may still go after you for matters unrelated to your testimony, but you’re protected in this specific case. 

The government cannot use your testimony to find further incriminating evidence against you. If they happen to find some, they must attend an ethics hearing to prove the evidence did not, in any way, originate from the information you gave them. 

Statutory Immunity 

Statutory immunity is the strongest immunity you can receive, and it may only be granted by a judge. 

To receive statutory immunity, a federal judge must review the details of your case. If the judge determines your testimony is valuable enough, they will order you to speak. 

This immediately invokes your Fifth Amendment rights. You have the right to remain silent, so if a court order requires you to speak, that information may not be used directly or indirectly against you. 

Should you take an immunity agreement?

Speak to a qualified federal criminal defense attorney before accepting any immunity agreement. While immunity is often a “win,” it’s important to understand what kind of immunity you accept and what it will accomplish for you. You also want to be sure that accepting an immunity agreement will not put you in a worse position than the one you started in.

If you’re in trouble, don’t delay. Contact Greco Neyland to get help today. 

See also:

What is a Target Letter? 

How Does Bail Work in a Federal Criminal Case? 

The Definitive Guide for Those Charged With Federal Crimes in NYC

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