Immunity - From A Criminal Defense Perspective

Everyone is talking about General Michael Flynn’s willingness to talk to a Senate Intelligence Committee contingent upon his receiving immunity for his testimony. Yet there are a lot of misconceptions out there about what immunity is, and isn’t.

As a criminal defense attorney who has frequently dealt with getting clients immunity in exchange for testimony in complex felony matters such as drug trafficking and bank fraud (just to name a few), I cringe every time I hear pundits describe immunity without really having a good practical understanding of how it works. Let’s see what we can do in 779 words to clear things up.

What is Immunity?

Immunity is the granting of a promise to an individual that in exchange for their truth testimony and cooperation, that the information or evidence they provide will not be used against them in a future criminal proceeding.

Who Can Give Immunity?

Only prosecutors or law enforcement personnel who are the agents of the prosecution can give an individual a grant of immunity. Senators cannot make a promise on behalf of the FBI or the United States Department of Justice.

The Different Types of Immunity

Generally, there are two types of immunity; use immunity and transactional immunity.

  • Use Immunity means that nothing that the witness says will be used against them in a particular proceeding or matter. Perjury or untruthful statements can still be used against the witness (we’ll discuss this in a moment). The grant of immunity is somewhat limited.
  • Transactional Immunity means that the witness will not be prosecuted for any actions, conduct, or statements made in the current, subsequent, or any derivative proceedings. Prosecutors will almost never agree to transactional immunity as it gives the witness carte blanche to reveal almost anything (including murder) with utter impunity and without fear of reprisal.

Starting the Process of Immunity

Typically, a criminal defense attorney will make an overture to the prosecutor that his client wants to provide information concerning criminal activity that will provide substantial assistance to law enforcement in a pending case or in future investigations. The prosecutor will schedule a meeting for the witness to provide the information and answer questions. This is commonly known as a “freetalk” or “proffer.”

Prosecutors almost never go into these meetings without first doing substantial investigation and research on the case. They won’t allow a witness to bluff or mislead them. Typically of every 10 questions that are asked, prosecutors already know the answer to 7 of them. If the witness is not truthful on the first 7 questions, the last three – whose answers may not entirely be known – are not asked. It’s about the witness proving themselves as honest. Some witnesses often come to a proffer in hopes of fishing for information about the government’s case against them. An experienced criminal defense attorney will not allow this to happen and will first vet his client to make sure that no one’s time is being wasted.

A written proffer / freetalk agreement is executed before the start of the meeting. The letter itself is a limited form of immunity as nothing said at the meeting can be used against a witness in the event that no agreement for future cooperation is reached. It will generally state that the witness is receiving nothing for sitting down and talking, however the government will make a good faith evaluation of the information provided. It is after that review that a decision is made as to whether the witness should receive some benefit or a later grant of immunity in exchange of further testimony or cooperation.

What's the Catch?

Simple. You can’t lie in a proffer. While truthful statements can’t be used against you, if you lie to prosecutors and federal agents present at the meeting, you could be charged with a separate crime of making false statements of obstruction of justice. These offenses, in addition to any conduct that was the subject of the proffer, carry substantial prison terms and fines.

Let a Phoenix Criminal Defense Attorney Help!

You don’t need to be a high-ranking government official who was covertly involved with the Russians to hire one of Phoenix’s top criminal defense attorneys. While cooperation is a very delicate subject, and one that is very personal and sensitive, only by a consult with an experienced attorney can you effectively weigh the pros and cons of deciding whether seeking immunity is the right decision for you.

Contact Jason Lamm at (602) 663-9100 to set up a personal and confidential consultation to discuss your matter. Coming prepared to the meeting, including bringing all relevant notes and documents, will assist in determining if immunity is the right option for you.

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