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The legal term “immunity” refers to situations in which an individual will not be punished for certain instances of breaking the law because this will in some way help achieve a greater good for society. The most common example of immunity occurs when, in a federal or state criminal trial, prosecutors decide to grant immunity to witnesses who can honestly tell their story, which the prosecutors hope will lead to the conviction of the defendant, who stands accused of a crime.

However, “immunity” is an oftentimes misunderstood concept.  People like to throw the word around, saying that they will speak to the police if they are granted immunity. But, there is more than one type of immunity and being given immunity does not necessarily mean that you are safe from prosecution in the future, so it is important to understand what you may be getting yourself into when deciding to meet with law enforcement and prosecutors to give your statement.  

Transactional Immunity

Immunity is considered transactional if it is offered to a witness in exchange for his or her truthful testimony, and definitively ensures that the witness will not be prosecuted for the crime that the testimony involves. You may sometimes hear this kind of transactional immunity nicknamed “blanket immunity,” meaning just tell the truth and nothing will happen to you. Transactional immunity is so rarely used because it could, in effect, let someone who is guilty of a crime completely off the hook. There would have to be an extremely compelling reason for a prosecutor to ever offer transactional immunity. 

Derivative Use Immunity

Unlike transactional immunity, use immunity offers slightly narrower protections. With use immunity, prosecutors simply agree not to charge the witness with a crime based on testimony alone. While the government will not use your statement or admission to prosecute you for a crime, they can continue to investigate and pursue any investigative leads and prosecute you with that other evidence. Just because you are given use immunity, don’t assume that means that you can never be charged with a crime. 

In federal court, cooperation is a large part of resolving cases. Before going in to speak to federal agents and a prosecutor, the defendant will receive what is commonly referred to as a Kastigar letter. This letter signed by the defendant, his attorney and the prosecutor will set forth the understanding and agreement between the parties. Specifically, it will say that transactional immunity is not being offered.  What they do offer is a direct use immunity, meaning that what you say cannot be used directly against you. But, they will also explain to you that the government can continue to investigate leads derived from your testimony and if evidence is discovered then that evidence be used against you. 

Is it a good idea to cooperate or testify if I’m offered immunity?

If you have been involved with a crime, or if authorities believe that you have, it can be extremely frightening to navigate your situation with authorities. Cooperating and potentially testifying against your friends or other associates in exchange for immunity may seem like a very appealing escape route or, maybe, your only escape route. And sometimes it really is your best option, but not always. It is important to remember that when it comes to immunity, there are strings attached. You need to have a solid understanding of what those strings are and how they could be pulled.
Fortunately, you don’t have to face this alone. If you are involved in any sort of criminal investigation or prosecution, no matter the size of the role you allegedly played, you need to have a criminal defense attorney by your side. Your attorney can help you navigate situations like being offered immunity and can help you determine the course of action that is most likely to give you the outcome you’re looking for. At Puglisi Law, we represent clients in State and Federal cases. Contact us today to discuss your unique situation.