The concept of “immunity” is one we have all heard discussed in movies, songs, and television shows. In the most common portrayals a person is accompanied by their criminal defense lawyer and begs police officers for immunity with the promise of information related to the criminal activity of others. We’ve all seen this situation play out time and time again. Unfortunately, it is this incorrect understanding of immunity that gets many defendants in trouble.
Prosecutors Grant Immunity, Not Police Officers
Frequently police officers will promise immunity or lead the suspect to believe they will receive immunity if the suspect “just cooperates.” This negotiation takes place without the supervision of a criminal lawyer and once the police officer hears the information they want the handcuffs go on the suspect. Police officers are allowed to lie to suspects when interrogating them. They are allowed to say they have evidence they don’t really have. They are allowed to say they have cooperating witnesses they don’t really have. And finally, they are allowed to promise to let someone go if they “just cooperate.”
If you have information that could save you from criminal charges, you should likely negotiate with the prosecutor in the presence of a criminal attorney, not the police officer. The decision to cooperate with the prosecutor is one you should make only after speaking with a criminal defense attorney. Without speaking to a criminal attorney, you may be subjecting yourself to criminal liability without the protection you thought you would get.
Two Types of Immunity: Transactional Immunity and Use Immunity
The granting of immunity is a tool typically used in complex criminal cases where the prosecutor may have difficulty proving the case without the witness’ assistance. Serious crimes committed by more than one defendant are good opportunities for a witness to cooperate in order to obtain a more favorable outcome. Examples of serious crimes include drug trafficking, murder, arson, and burglary.
Transactional immunity is the broadest form because it offers immunity from any form of prosecution and for any crime discussed in the testimony of the witness. Transactional immunity does not protect the witness from criminal activity unrelated to the witness’ testimony.
Use immunity means the prosecutors agree that nothing from the testimony of the witness will be used against them in the event they are prosecuted. In the case of use immunity, the prosecutors and police are still free to gather evidence, independent of the testimony, in order to prosecute the witness.
Naturally, transactional immunity tends to be favored by witnesses and criminal defense attorneys but frequently the prosecution will be unwilling to grant it. If the prosecutor feels they can prove the case any other way, they will decline to grant transactional immunity. Additionally, some jurisdictions and courts do not allow transactional immunity.
Miami criminal defense attorneys Christopher Pagan, Esq. and Julian Stroleny, Esq. are experienced in immunity and witness testimony cases. Contact the office of Pagan & Stroleny, P.L. for a free consultation to discuss your best options, 305-615-1285. The criminal lawyers at Pagan & Stroleny, P.L. are former Miami-Dade prosecutors with the experience you need to get the best possible outcome.