BLOG BULLETS:

• In an appropriate case, you can compel the government to grant one of your witnesses immunity if the witness claims the privilege against self-incrimination.
• The witness’s testimony has to be relevant, but the relevance need only be “minimal.”
• The second requirement is that the government’s denial of immunity to the defense witness have the effect of “distorting the fact-finding process,” but there does not have to be an affirmative intent to create this effect.

NOW THE BLOG:

Last summer, I put up several posts about the privilege against self-incrimination, including how a witness has to assert it and whether the witness’s testimony has to be or can be stricken if he or she asserts the privilege as to some questions only. (See “More on the Privilege Against Self-Incrimination: How Do You Claim It?” and “Still More on the Privilege Against Self-Incrimination: What Do You Do if the Witness Claims It?” in the June 2013 and July 2013 links at the right.) I noted that, first, a witness, as opposed to a defendant, has to claim the privilege on a question-by-question basis, and, second, the test for whether a witness’s entire testimony can be stricken if he or she claims the privilege in response to only some questions is whether selectively claiming the privilege in response to only those questions “mutilate[s] the truth,” United States v. $133,420 United States Currency, 672 F.3d 629, 641 (9th Cir. 2012) (quoting Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988) and Brown v. United States, 356 U.S. 148, 156, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958)).

The focus in the second of those posts was on striking a government witness’s testimony when the witness asserts the privilege in response to your cross examination and/or keeping the government from striking a defense witness’s testimony when the witness asserts the privilege in response to the government’s cross examination. Recently, I saw a summary of a new Ninth Circuit case on one of the e-mail lists I’m on that brought to mind another aspect of this problem. What do you do when you call a witness and the witness asserts the privilege not just in response to the government’s cross examination but in response to your direct examination as well, so it’s not just a matter of preventing the good stuff from being stricken but a matter of how to get the good stuff in in the first place? The government has the obvious remedy of granting the witness use immunity, but the system hasn’t given that power to us for some reason. (Now, why might that be?)

The title of this post offers a little more hope than is warranted under the case law, but there is a remedy for us in a sufficiently extreme case. Ninth Circuit case law establishes that in certain circumstances the government can be compelled to grant immunity to a defense witness just like it can choose to grant immunity to its witnesses.

The test is laid out in some detail in United States v. Straub, 538 F.3d 1147 (9th Cir. 2008). (The more recent case I saw – United States v. Wilkes, 744 F.3d 1101 (9th Cir. 2014) – simply applied the test, and did so adversely to the defendant, I’m afraid.) The first requirement is that the testimony the witness would have given is relevant, but the relevance need be only “minimal.”Straub, 538 F.3d at 1157 (quoting Williams v. Woodford, 384 F.3d 567, 600 (9th Cir. 2004)). “The defendant ‘need not show that the testimony sought was either clearly exculpatory or essential to the defense.’” Straub, 538 F.3d at 1157 (quotingUnited States v. Westerdahl, 945 F.2d 1083, 1086 (9th Cir. 1991)). The testimony in Straub was sufficiently relevant “because it raised credibility questions about a key prosecution witness.” Id., 538 F.3d at 1157.

The second prong of the test is more difficult, however. The showing required has been generally described as that “the prosecution refused to grant the [defense] witness use immunity with the deliberate intention of distorting the fact-finding process.” Straub, 538 F.3d at 1157 (quoting Williams, 384 F.3d at 600). One way to establish this is to show “that the prosecution intentionally caused a defense witness to invoke the Fifth Amendment right against self incrimination,” Straub, 538 F.3d at 1157 (quoting Williams, 384 F.3d at 600), which requires “something akin to prosecutorial misconduct,” Straub, 538 F.3d at 1157.

But there is another way to satisfy this second prong of the test for compelling the government to grant immunity to a defense witness. Straub held there does not always need to be a prosecutorial intent to “distort the fact-finding process.” In some instances “a showing that the selective denial of immunity ha[s] the effect of distorting the fact-finding process is sufficient.” Id. at 1158 (emphasis added). The court explained that “[f]ew of our cases considering compelled use immunity have had to confront the purpose/effects question, since the defendant’s witnesses frequently offered evidence that was irrelevant.” Id. The court then went on to discuss its prior decisions in depth and concluded that its prior statement of the test, “to the extent it appears ambiguous, merely reflects the fact that while we have previously suggested that an effects test is viable, we have never yet been presented with such a case.”Id. at 1160. The court then held:

It is equally clear that our jurisprudence has anticipated endorsing an effects test where the other elements of the test have been satisfied. The separation of powers concerns implicated by compelled immunity suggest that we should be hesitant in expanding Williams; nevertheless, the logic of Williams and the cases it drew from supports the adoption of an effects test. Even where the government has not denied a defense witness immunity for the very purpose of distorting the fact-finding process, the government may have stacked the deck against the defendant in a way that has severely distorted the fact-finding process at trial. (Citation omitted.) In those cases where the government has liberally used its discretion to grant immunity to numerous witnesses, and the defendant’s witness could offer relevant testimony that would directly contradict that of an immunized government witness, the trial may become so fundamentally unfair that the defendant’s due process rights are implicated.

Id. The court then noted that this approach is consistent with Supreme Court authority.

[W]hen dealing with due process violations in the context of the fundamental fairness of the trial, the Supreme Court has been more concerned with protecting the integrity of trial and the defendant’s right to mount a defense, irrespective of any government intent to interfere with these rights. The Due Process Clause addresses the defendant’s right to a fair trial, not just whether the government intended to deny the defendant his rights.

Id.

The court did go on to suggest that “in the majority of cases where a defendant seeks to compel immunity for a witness, that witness’s testimony will not be ‘directly contradictory’ to that of the prosecution’s witness, or there will have been no distortion of the fact-finding process.” Id. at 1161. Still, it found the case before it qualified, albeit as “the rare case.” Id. at 1162. This suggests it’s an uphill, but not impossible, battle. So it’s an interesting issue to watch for in cases where the government has granted immunity to some witnesses but not others.