What is criminal immunity?

What is immunity and when and under what circumstances is criminal immunity offered?  Is it actually a "get-out-of-jail-free" card or is it more complex?  Former federal prosecutor and current law professor Bennett Capers explains.


  Bennett Capers is a professor at Brooklyn Law School where he focuses on evidence, criminal procedure, and criminal law.

What is criminal immunity? Brief Transcript

So what is immunity? Before I answer that question, allow me to introduce myself. My name is Bennett Capers. I’m a professor at Brooklyn Law School where I teach courses relating to criminal procedure and evidence and criminal law, and I’m also a former federal prosecutor. I was an assistant U.S. Attorney of the Southern District of New York. And there, the issue of immunity came up quite often.

So what is immunity? Really, immunity is what we use to say a "get out of jail free" card. It literally means that you might never be prosecuted. But technically, there are two types of immunity in the federal system. There’s something called use immunity, and there's something called transactional immunity.

So use immunity simply means that if a defendant comes in testifies or does whatever in exchange for immunity, the government won't use anything the defendant says to prosecute that defendant later on. So if a defendant has use immunity and says, “Oh, by the way I killed somebody,” because of use immunity, the government can’t actually use his statement to later prosecute him. But if the government finds independent evidence separate and apart from what the defendant says that points at his guilt, the government can use that information. So that’s why it's more limited.

Transactional immunity completely covers a defendant. So transactional immunity is basically a blanket immunity. The government is saying, “You will not be prosecuted for the following crimes no matter what. Even if we learn independent evidence, we still will not prosecute.” So that's what defendants prefer.

So how does one go about getting either use immunity or transactional immunity? In the federal system, it's actually given out very rarely. I don’t think prosecutors like giving it out, for good reason. There are other ways of getting information from defendants. If the defendant can make the pitch to the prosecutor, of course, the defendant is speaking through his lawyer, and usually what would be set up is a meeting where the defendant would be present, the defense lawyer, the prosecutor. And there would be a “Queen for a day” agreement basically during which the defendant would lay everything out on the table, say everything he has to say, say why his information is so valuable, and basically make the pitch to the prosecutor for why in exchange for his valuable information, he should be given immunity. One thing I should say about immunity is in the federal system, the government holds all the power, all the cards. This is one of the few areas where a federal judge is actually powerless. A judge cannot order a prosecutor to give a witness immunity. It's actually something the prosecutor decides. And in the federal system, it actually goes beyond simply the prosecutors offices; its actually a decision that goes through Washington. 

So that’s a little nutshell about immunity in the federal system. My name is Bennett Capers, and thank you for watching TalksOnLaw.