Can a witness refuse immunity?

Immunity is a powerful tool used by prosecutors to compel testimony from witnesses in criminal cases. Granting immunity protects a witness from prosecution for any crimes they reveal while testifying. This provides a strong incentive for witnesses to provide complete and truthful information, even if it implicates them in wrongdoing. However, witnesses do have some ability to refuse immunity or avoid testifying, even when offered immunity. Here is an overview of how immunity works and when a witness can potentially avoid testifying under an immunity grant.

Table of Contents

What is Immunity?

Immunity exempts a witness from prosecution for any conduct they admit to during testimony. There are two main types of immunity:

Transactional immunity: The strongest form of immunity. It protects the witness from prosecution for any transactions or conduct they testify about.

Use immunity: More limited. It prevents the witness’s testimony from being used against them in a criminal case, but does not preclude prosecution entirely.

Prosecutors generally prefer use immunity, as it gives them more flexibility to prosecute the witness later using other evidence. Either form of immunity only applies to crimes revealed in testimony. It does not prevent prosecution for perjury or false statements given while testifying under the immunity grant.

How Immunity Works

For immunity to apply, there must be a formal agreement between the prosecuting authority and the witness. The steps are generally:

Prosecution requests immunity for the witness from a judge.
If approved, the judge issues a court order granting immunity.
Prosecution drafts a written immunity agreement with the witness.

The agreement spells out what testimony the immunity covers.
Witness must agree to testify truthfully under the grant of immunity.

Once these steps are complete, the immunity protects the witness from being prosecuted based on their testimony. However, the agreement can be invalidated if the witness lies, refuses to testify, or fails to fully comply with the immunity grant. Immunity only applies to the crimes and information revealed in the testimony.

Can a Witness Refuse Immunity?

Yes, a witness may have valid reasons to refuse immunity and decline to testify, even if offered immunity by prosecutors. Some key points:

The Fifth Amendment right against self-incrimination still applies. A witness may stay silent if they believe their testimony could open them up to criminal prosecution.
However, a grant of immunity eliminates Fifth Amendment protection relating to the testimony itself. Once immune, a witness’s silence can be punished with contempt of court.

Spousal privilege allows a witness to refuse to testify against their spouse.
Attorney-client privilege enables an attorney to refuse to breach client confidentiality.
An appeal is possible if the immunity itself is legally defective or the testimony goes beyond the bounds of the immunity agreement.

In rare cases, a judge may relieve a witness of the duty to testify if the immunity grant would cause an extreme hardship.

So while prosecutors wield substantial power to compel testimony using immunity, witnesses do retain certain rights to refuse under limited circumstances.

Refusing Immunity Despite Court Order

If a court has approved the immunity agreement, the witness may have little choice but to comply. Technically, the court cannot force the witness to incriminate themselves. But refusing to testify after immunity has been granted can lead to severe consequences:

The judge may hold the witness in contempt of court for defying a court order to testify. This can result in fines or jail time.
Some grants of immunity contain language stating that refusal to testify breaches the agreement and invalidates the immunity. So the witness could then face prosecution based on their silence.
In rare cases, persistent refusal to testify despite immunity can result in indefinite detention without trial through “civil contempt.” But imprisonment cannot extend beyond the end of the trial, or 18 months if no trial.

So while a determined witness may be able to avoid testifying temporarily, the punishments for contempt mean the refusal often cannot be sustained long-term if prosecutors aggressively pursue testimony.

When Can a Witness Avoid Testifying?

There are some scenarios where a witness has a stronger basis to refuse testimony, even under immunity:

Pending criminal charges: If the witness is already charged with crimes subject to the immunity, they may be able to postpone testifying until after their own trial so as not to expose their defense strategy.

Improper immunity grant: If prosecutors exceed their authority or violate due process when securing immunity, an appeal may invalidate the immunity agreement.
Invalid jointly tried co-defendants: Co-defendants tried together cannot be compelled to testify against each other, even with immunity.
Sham marriages: Spouses retain marital privilege and cannot be made to testify against each other.

Compelled waiver of right to silence: Prosecutors may not use threats or coercion to compel a witness to voluntarily waive their Fifth Amendment protections.

In these situations, the witness can make a strong legal argument against the enforceability or propriety of the immunity grant and their duty to comply. But outside of such circumstances, refusal can be punished harshly.

Can Immunity be Negotiated or Limited?

What if a witness wants to cooperate, but only to a limited extent? They have some ability to try to negotiate or customize the immunity deal:

A witness may try seeking a narrower immunity scope that only covers certain conduct or testimony.
The witness can request “Queen for a Day” letters promising immunity for proffer sessions to initially discuss potential testimony.
Alternatively, witnesses can ask prosecutors to limit immunity to use immunity instead of full transactional immunity.

Informal implicit immunity based on oral promises is also possible, but less secure.
Prosecutors have discretion over what immunity to offer, but witnesses can argue over the terms.

However, negotiating immunity deals is challenging for witnesses without attorneys. Once signed, the immunity agreement is difficult to change or limit. Refusing to testify can nullify the agreement.

Can Defense Attorneys Refuse to Violate Privilege?

One key exception where witnesses can refuse to testify even under immunity is attorney-client privilege. Communications between an attorney and their client are generally confidential.

Attorneys cannot be compelled to testify about privileged information except in limited circumstances. Points regarding attorney testimony and privilege include:

Attorney-client privilege belongs to the client, not the attorney.

Privilege does not apply if the communication was made in furtherance of a crime or fraud.
Defense attorneys often cannot be compelled to testify against clients, even with immunity.
Prosecutors frequently request attorney testimony, but privilege makes compulsion difficult.

Attorneys cannot disclose confidential information subject to privilege without the client’s consent.
Breach of privilege can lead to state bar ethics violations for the attorney.

So while immunity provides prosecutors power to obtain testimony, compelling attorneys to breach confidentiality under privilege poses challenges. Attorneys have grounds to refuse testimony to avoid violating their ethical duties.

When Can a Spouse Refuse to Testify Against Their Partner?

Many states recognize spousal privilege, which allows spouses to refuse to testify against each other in criminal proceedings. Immunity offers little leverage to override this privilege. Key aspects of spousal privilege include:

Spousal privilege varies in scope based on jurisdiction.
It prevents compelled testimony against a defendant-spouse.

Privilege applies only to lawful spouses, not unmarried partners.
Testimony about crimes jointly committed by spouses may not be privileged.
Prosecutors often seek testimony from spouses despite privilege.

But spousal privilege remains a barrier to compelling testimony against a spouse.
A spouse can essentially “plead the Fifth” on behalf of their accused partner.

While prosecutors can offer immunity to a witness-spouse, it does not override spousal privilege. The spouse must consent to testify. With no such consent, they maintain a Fifth Amendment right to refuse to incriminate their spouse.

Does Family Relation Matter for Asserting Privilege?

Spousal privilege provides a clear basis for refusal, but what about other family relationships? The ability of witnesses to invoke privilege varies based on their relationship to the accused:

Relationship	Privilege?
Spouse	Yes
Parent	No
Child (minor)	Yes
Child (adult)	No
Sibling	No
Grandparent	No
Cousin	No
In-laws	No
Stepparent	No
Stepbrother	No

Outside of spousal privilege, only parent-child privilege for minor children provides a clear basis to refuse testimony against a family member. For other biological or legal family relationships, privilege claims rarely succeed in excusing testimony.

When Can Fear of Retaliation Allow Refusing Testimony?

In limited cases, a credible fear of physical harm from retaliation against the witness or their family can justify refusing testimony under immunity. But courts generally set a high bar for this argument. Key considerations include:

Judges have discretion over whether safety concerns excuse testimony.
The threat must be more than speculative; there should be evidence of real danger.
Appeals to protect family members may have more traction than individual safety concerns.

Government witness protection programs can bolster arguments to testify despite threats.
Prosecutors frequently argue civic duty overcomes alleged fears.
Judges ultimately balance the interests, and may compel testimony over most threats.

While risks of retaliation do arise in criminal cases, immunity agreements generally override generic safety concerns. Witnesses face a high burden in refusing testimony based on threats or fears.

Conclusion

Immunity provides prosecutors extraordinary power to compel testimony, even from hostile witnesses implicated in crimes. However, while on the surface witnesses appear to have little recourse against testifying under immunity, some narrow grounds for refusal remain. Spousal and attorney-client privilege stand as significant bulwarks against compelled testimony. Witnesses also retain Fifth Amendment protections against questions that go beyond an immunity grant’s scope. Outside of such circumstances, however, witnesses who refuse to comply with immunity face steep penalties in being held in contempt of court. While immunity agreements can be negotiated around the edges, full refusal of compelled testimony remains difficult.