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A Primer on Immunity from Prosecution

Television shows dramatize the role of the “informant,” an individual with inside knowledge of a criminal enterprise who provides information to the police in exchange for some benefit. Usually this “benefit” is immunity: In other words, the informant agrees to provide important information to police officers investigating a crime in return for a promise that law enforcement officers and prosecutors will not attempt to press charges against the informant. What happens in the world of TV crime dramas is one thing, but how does immunity work in the real world?

Offers of Immunity from the Prosecution

If the prosecutor of the appropriate jurisdiction believes you have important information that would aid in the prosecution of another case, the prosecutor may approach you with an offer of immunity. When offering a person immunity, the prosecutor is agreeing to to take certain prosecutorial actions against the person to whom immunity is offered. There are two basic types of immunity that can be offered: Transactional immunity means that the prosecution has agreed not to prosecute the person for any criminal act arising out of the facts about which the person will provide information. For example, suppose a home is burglarized and two suspects are identified. Prosecutors offer one of the suspects transactional immunity. This suspect then cannot be prosecuted for any crime related to the home invasion and/or burglary.

The second type of immunity offered is known as use immunity. This means that prosecutors agree not to use any information obtained from the person, nor any other information that could only be obtained by using the information provided, in prosecuting the person. Using the same home burglary example, suppose the prosecution offers use immunity and, once such immunity is offered, the suspect admits he and the other suspect entered the home with the intent to steal the items inside the home. In this case, the prosecution can still bring burglary charges against the suspect who was granted immunity, but the prosecution cannot use the suspect’s admission of guilt against him. The prosecution will need to use other evidence – fingerprints, eyewitnesses, etc. – to prove the suspect’s guilt.

The “Catch” of Offers of Immunity

Offers of immunity can mean the difference between freedom and incarceration, but there is a catch: Offers of immunity are almost always made contingent on you waiving any Fifth Amendment right against self-incrimination and testifying truthfully in other criminal matters. If you fail to do either of these things – if you take the stand and assert your Fifth Amendment rights or you knowingly tell lies – the offer of immunity is usually withdrawn and, with it, any agreements or concessions made to you by the prosecution. For this reason, you should discuss any offer of immunity with a competent criminal defense lawyer before accepting such offer.

South Florida criminal defense lawyer Jeffrey S. Weiner is available to provide experienced and knowledgeable counsel to Florida residents charged with criminal offenses and/or those offered immunity by prosecutors. Contact his office today to discuss your situation. You can reach Jeffrey S. Weiner, P.A. by calling the firm at (305) 670-9919 or by contacting the firm online.

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