Self-incrimination and immunity
Last Thursday, I got a call about 3:30 PM from a bailiff asking me if I was downtown. I looked out the car window and saw that I was just passing mile marker 196 on the Ohio Turnpike, so I could truthfully answer no. "Why? What's up?"
"The judge wanted you to advise a witness of their self-incrimination rights," she said. "But we'll find somebody else."
It didn't surprise me when she called back five minutes later. Finding a defense lawyer just hanging out in the Justice Center at 3:30 in the afternoon reminds me of the old joke about how they were going to do a Nativity play in Washington, D.C., but couldn't find three wise men or a virgin. "Can you be here tomorrow morning at 8:30?"
And I was. So were the four defense attorneys, the three defendants, the two prosecutors. Unfortunately absent, besides the partridge in a pear tree, was the witness I was supposed to advise.
I spent some time getting up to speed on the case, which was about a series of gang-related shootings -- A shot at B, so C shot at A, or D, and then E shot at F, and so on, a game of telephone with AK-47's or other weapons of choice as the accoutrements, every now and then a bullet finding its mark. My witness was supposedly a victim of a kidnapping that had occurred during this sequence of events.
I hung around for a while, then was off to sit through a proffer with another client, something even more boring than just hanging around. I spent two and a half hours doing that, and was halfway through lunch when the bailiff called and told me my witness had arrived.
The easy thing to do would have been to talk to her, tell her she has a right against self-incrimination, and ask her if she wanted to assert it. That would also be the wrong thing. While a defendant has an absolute right to take the Fifth Amendment, a witness does not.
The law governing when a witness is entitled to assert the privilege is contained in the Supreme Court's decision earlier this year in State v. Arnold (discussed here). A witness can decline to answer only when the danger of self-incrimination is
real and appreciable, with reference to the ordinary operation of law in the ordinary course of things, not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.
It's not really that hard to do; the burden on a witness "is not an onerous one," and you don't have to go into detail on how the witness might incriminate herself, since that might "surrender the very protection which the privilege is designed to guarantee." I'd learned from the defense that my witness had made contradictory statements, and that they had a picture possibly linking her to another crime. I explained the standard to the judge, the evidence I knew of, and that based on that and my confidential communications with my client I believed her testimony would expose her to possible charges of perjury or involvement in another criminal case. That was good enough for the judge.
But we're not done, because the State announced they were going to seek immunity for the witness.
Here's what you need to know about that. It's governed entirely by RC 2945.44. A prosecutor can ask the judge to grant immunity, but only the judge can actually do that. If the witness is granted immunity, she has to answer the questions. But if she does,
the witness shall not be prosecuted or subjected to any criminal penalty in the courts of this state for or on account of any transaction or matter concerning which, in compliance with the order, the witness gave an answer or produced any information.
That's transactional immunity. It differs from use immunity, which only prohibits the government from using the witness's testimony, or any evidence derived from that testimony, against her.
The distinction isn't always a critical one. Let's say, for example, that to everybody's surprise the witness testifies that she killed someone. Under transactional immunity, she can't be prosecuted for that at all. Under use immunity, she can be prosecuted, but only if the state finds evidence totally unrelated to anything she said. If her testimony leads them to the discovery of a body, or to other witnesses, she still can't be prosecuted, because all of the evidence was derived from her testimony.
Still, transactional immunity is the gold standard here, and it gave the prosecutors some concerns. We came back on Monday morning, and one of them, an earnest young man, asked me what transaction the immunity would be limited to. "Whatever comes out of her mouth," I replied.
He said his interpretation differed from mine, and advised me that he had summoned someone from the prosecutor's appellate division to clarify this. Apparently, someone from the appellate division clafied it by telling him they agreed with me.
The prosecutorial team plunged ahead nonetheless, asking for immunity, with the admonition that they would only be asking "relevant" questions, and assumed the defense would do so as well. Good luck with that; cross-examination can explore things beyond the "relevant" facts, like bias or motive, and the judge promised to allow a "robust" cross-examination.
She appeared as a witness later that afternoon. I didn't hang around; my work was done.
I don't think she killed anybody, but I guess we'll find out.