Can I Receive Immunity for an Exchange in Testimony?
New Mexico Defense Lawyers Discuss Offering Testimony in Exchange for Immunity in Criminal Cases
It is your Constitutional right to remain silent when police or prosecutors ask information that forces you to self-incriminate yourself.
However, you might be asked to provide information that is incriminating in return for immunity. Offering protection is a prosecutor’s way to override your privilege and access information you know, but also protects you against self-incrimination.
Note that in this post, you are only learning about the types of immunity you can receive. By no means does it constitute legal advice, and we do not necessarily suggest taking immunity in exchange for your testimony. Instead, you must always consult with a defense attorney to see if immunity is best for your case and the consequences of testifying.
Transactional Immunity: Complete Protection
Out of the two types of immunity from prosecution offered, transactional is the broadest and most complete. Anything mentioned in your testimony becomes protected. That is why transactional immunity is often referred to as “blanket” immunity.
Here are a few things to know about transactional immunity:
- You cannot be prosecuted for admittance to criminal activity. If during your testimony you must admit to crimes, the prosecution cannot charge you with a crime or any crimes related to the information you say in that statement.
- Prosecutors can seek evidence elsewhere. While you have broad immunity, do not think that you would not be prosecuted. Prosecutors can learn elsewhere about your actions in a crime, gather evidence, and charge you with that crime later, especially if the crime is unrelated to the events you testify to.
- Prosecutors rarely offer such generous immunity. Rarely will you see a prosecutor offer this generous form of immunity. They do not want to allow a person to get away with a crime or escape punishment. Therefore, they might provide another type of immunity or no immunity.
Derivative Use Immunity
Also referred to as “use and derivative use” immunity, this is a common form of immunity issued by New Mexico state prosecutors. If they decide that your testimony is worthwhile, they could extend derivative use immunity, but the scope of this protection is much narrower.
The prosecution cannot use your statements or evidence that derives from your statements against you in a prosecution. However, there is more to this form of immunity than meets the eye:
- Prosecutors can obtain independent evidence. During your testimony, if you indicate or hint that you played a role in the crime, prosecutors have the right to seek independent evidence. That independence evidence is not produced from your testimony, which gives them the right to prosecute you.
- Prosecutors might find another witness against you. Immunity for testimony becomes a vicious cycle at times. You not only receive protection, but the prosecution can also find a witness who will testify against you in exchange for immunity.
- Stipulations always apply. Typically, stipulations apply to all types of immunity. Therefore, it is important to review these stipulations, have them in writing, and have a criminal defense attorney by your side to ensure these stipulations do not increase the likelihood you will be charged with a crime too.
Do Not Accept Immunity Until You Speak with an Attorney
When prosecutors waive immunity in front of you, you might be tempted to take it. They might even tell you that the offer goes away if you speak to an attorney.
Never accept an offer of immunity in exchange for your testimony without consulting an attorney. A criminal defense lawyer is better equipped for negotiating such deals and ensuring that you cannot be charged or arrested in the future based on what you testify to.