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Defense Witnesses Need Immunity Too:

Why the Supreme Court Should Adopt
the Ninth Circuits Approach to
Defense-Witness Immunity

ALISON M. FIELD*

ABSTRACT
[W]here two eyewitnesses tell conflicting stories, and only the witness
testifying for the government is granted immunity, the defendant would be
denied any semblance of a fair trial. With all the money, power, and
witnesses at its disposal, it is hard to see how the government ever loses a
case. In order to reconcile the power imbalance between the government
and the defendant, as well as to protect the defendants constitutional
rights, Congress has developed the use-immunity statute, 18 U.S.C. 6002.
Still, in criminal cases, U.S. courts are reluctant to grant immunity to
defense witnesses. Prosecutors also have the power to provide immunity to
defense witnesses, but not surprisingly, they rarely ever exercise that
power. Thus, defendants are prevented from presenting a complete
defense when a possible witnesswith exculpatory evidence or statements
that could impeach the prosecutions witnessis unavailable (primarily
due to asserting the Fifth Amendment privilege).

Candidate for Juris Doctor, New England Law | Boston (2015). B.A., Psychology, Indiana
University (2012). I would like to thank the New England Law Review staff for their hard work,
my friends and family for encouraging me, and, finally, DMF for providing me with the
inspiration for the article.

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This Note argues that courts should have broad discretion in providing
defense-witness immunity. Accordingly, the Supreme Court, which has not
ruled on the issue of defense-witness immunity, should adopt the Ninth
Circuits approach. The Ninth Circuit approach considers: (1) whether the
testimony is relevant; and (2) whether the prosecutor caused the defense
witness to invoke his Fifth Amendment privilege, or denied immunity to
a defense witness whose testimony would contradict that of a government
witness who was granted immunity.

INTRODUCTION

icture this scenario: you are charged with committing a crime and
the government puts a witness on the stand who provides essential
testimony against you.1 Your attorney attempts to present a witness
who can testify on your behalf and rebut the government witnesss
testimony, but your witness refuses to testify.2 Your witness is afraid that
testifying for you will implicate him in the crimes that you are charged
with, and he is unwilling to cooperate.3 As a result the jury hears only one
side of the storythe governments.4
[W]here two eyewitnesses tell conflicting stories, and only the
witness testifying for the government is granted immunity, the defendant
would be denied any semblance of a fair trial.5 With all the money,
power, and witnesses at its disposal, it is hard to see how the government
ever loses a case.6 In order to reconcile the power imbalance between the
government and the defendant, as well as to protect the defendants
constitutional rights, Congress developed the use-immunity statute, 18
U.S.C. 6002.7 Still, in criminal cases, courts across the United States are
reluctant to grant immunity to defense witnesses. 8 Prosecutors also have

1 See United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991) (discussing the
scenario where a defendant witness is not granted immunity, even though the witnesss
testimony directly conflicts with the immunized-government witnesss testimony).
2

See id. at 108586.

See id.
4 See id. at 1087.
5 Id. (quoting United States v. Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984)).
6 See Hon. H. Lloyd King, Jr., Why Prosecutors are Permitted to Offer Witness Inducements: A
Matter of Constitutional Authority, 29 STETSON L. REV. 155, 175 (1999) (examining the lack of
power defense counsel possess in relation to the power afforded to government attorneys).
7 See 18 U.S.C. 6002 (2012).
8 See Nathaniel Lipanovich, Resolving the Circuit Split on Defense Witness Immunity: How the
Prosecutorial Misconduct Test Has Failed Defendants and What the Supreme Court Should Do About
It, 91 TEX. L. REV. 175, 178 (2012).
3

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the power to provide immunity to defense witnesses, but not surprisingly,

they rarely ever exercise that power.9 Thus, defendants are prevented from
presenting a complete defense when a possible witnesswith exculpatory
evidence or statements that could impeach the prosecutions witnessis
unavailable.10
This Note argues that courts should have broader discretion in
providing defense-witness immunity. Accordingly, the Supreme Court,
which has not ruled on the issue of defense-witness immunity, should
adopt the Ninth Circuits approach. The Ninth Circuit approach considers:
(1) whether the testimony is relevant, and (2) whether the prosecutor
caused the defense witness to invoke the Fifth Amendment privilege or
denied immunity to a defense witness whose testimony would contradict
that of the government witness who was granted immunity.11
Part I addresses the importance of defense-witness immunity statutes
and the proponents arguments for advancing these statutes. Part II
introduces the three different approaches the circuit courts have taken
regarding a trial courts ability to grant defense-witness immunity. Part III
analyzes and discounts the Third Circuit approach to defense-witness
immunity. Part IV discusses and rejects the Second Circuit defense-witness
immunity approach. Part V argues that the Supreme Court should adopt
the Ninth Circuit defense-witness immunity approach. This Note
concludes that the Supreme Court should adopt the Ninth Circuit
approach to defense-witness immunity because it is more lenient,12 focuses
on the effect of the prosecutors actions,13 and balances grants of immunity
for prosecutors and defendants.14

9 See JULIE R. OSULLIVAN, FEDERAL WHITE COLLAR CRIME: CASES AND MATERIALS 87478
(4th ed. 2009).
10 Unavailability is most often due to a witness asserting the Fifth Amendment privilege.
See United States v. Straub, 538 F.3d 1147, 115658 (9th Cir. 2008) (leaving the defendant with
no choice but to accept the trial courts decision not to grant use immunity).
11

Id. at 1162.
Compare id. (broadening the prosecutorial misconduct definition to include conduct that
has the effect of distorting the fact-finding process), with United States v. Ebbers, 458 F.3d 110,
119 (2d Cir. 2006) (limiting the prosecutorial misconduct definition only to conduct that
deliberately distorts the fact-finding process).
12

13 Compare Straub, 538 F.3d at 1162 (holding that prosecutorial misconduct can be proven
with actions that have the effect of distorting the fact-finding process), with Ebbers, 458 F.3d at
119 (requiring that prosecutorial misconduct be shown by deliberate actions that distort the
fact-finding process).
14 See Straub, 538 F.3d at 115657 (allowing courts to grant immunity for defense witnesses,
instead of making the immunity grants dependent on the prosecutors decisions).

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Background
A. The Importance of the Unsettled Area of Defense-Witness Immunity
Statutes

In 1956, the Supreme Court recognized the importance of immunity

statutes and declared that statutes granting immunity ha[ve] become part
of our constitutional fabric.15 Every state has enacted a use-immunity
statute, and Congress has passed over forty immunity statutes on the
federal level.16 The use-immunity statute, 18 U.S.C. 6002,17 provides
federal prosecutors with the ability to grant witnesses immunity, but does
not grant defendants equivalent power.18 Thus, courts have attempted to
resolve this inequity in two ways, by either: (1) directly granting witnesses
immunity;19 or (2) threatening to dismiss the prosecutions case if it does
not provide immunity for defense witnesses.20 As state and federal courts
attempt to reconcile this unsettled area of law, the division in approaches
has only increased.21 However, the Supreme Court has yet to decide when
a defendant is entitled to obtain immunity for witnesses.22

15

Ullmann v. United States, 350 U.S. 422, 438 (1956).

Murphy v. Waterfront Commn, 378 U.S. 52, 94 (1964) (White, J., concurring), overruled in
part on other grounds by United States v. Balsys, 524 U.S. 666 (1998).
16

17 18 U.S.C. 6002 (2012) (providing that an immune witnesss testimony will not be used
against the witness in a future prosecution).
18

See id.
See Govt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980) (explaining that the effective
defense theory requires defense-witness immunity when it is found that a potential defense
witness can offer testimony which is clearly exculpatory and essential to the defense case and
when the government has no strong interest in withholding use immunity). However, only
the Third Circuit has taken this approach. See 33A FEDERAL PROCEDURE: LAWYERS EDITION
80:301 (2014) [hereinafter FEDERAL PROCEDURE].
19

20 See, e.g., United States v. Burke, 425 F.3d 400, 411 (7th Cir. 2005) ([A] federal court
cannot order the government to immunize a defense witness, [but] courts can dismiss an
indictment where the prosecutors refusal to grant immunity has violated the defendants
right to due process.) (citing United States v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir.
1988)).
21 See United States v. Straub, 538 F.3d 1147, 1166 (9th Cir. 2008) (urging judgment of
acquittal unless the prosecution granted use immunity to the defense witness); State v.
Belanger, 210 P.3d 783, 79293 (N.M. 2009) (creating a rule allowing district courts to grant use
immunity with or without the prosecutors agreement).
22

The Supreme Court had the ability to resolve questions surrounding defense witness
immunity, but declined every opportunity to do so. See, e.g., Hunter v. California, 498 U.S.
887, 887 (1990) (Marshall, J., dissenting from denial of writ of certiorari); Autry v. McKaskle,
465 U.S. 1085, 1086 (1984) (Marshall, J., dissenting from denial of writ of certiorari).

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B. Arguments in Favor of Obtaining Immunity for Defense Witnesses

While obtaining immunity for defense witnesses remains an unsettled
area of law, proponents continue to advance a multitude of arguments in
favor of granting defense-witness immunity.23 These arguments center on
two premisesdefense-witness immunity is needed to: (1) balance the
power between the prosecution and the defense to ensure a fair and just
trial;24 and (2) protect the defendants constitutional rights. 25
1.

Balancing Power to Ensure a Fair and Just Trial

The first argument in support of defense-witness immunity

emphasizes that leveling the playing field, between defendant and
prosecutor, allows courts to provide a fair and just trial. 26 Defense-witness
immunity can uncover the truth and prevent the incarceration of innocent
defendants.27 The U.S. Attorney Manual is a Department of Justice internal
reference guide that provides the controlling policies and procedures for
U.S. Attorneys.28 This manual states, 18 U.S.C. 6002 will not be used to
compel the production of testimony or other information on behalf of a
defendant except in extraordinary circumstances where the defendant
plainly would be deprived of a fair trial without such testimony or other
information.29 Ultimately, this gives the government the final say and
leaves defendants with very few options, which is especially troubling
given the adversarial nature of a criminal prosecution. 30
Although compelled testimony often plays an important part in
obtaining a successful result in criminal prosecutions,31 courts frequently
reject the idea that there is a power imbalance between prosecutors and

23

Lipanovich, supra note 8, at 185.

Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (The right of an accused in a criminal
trial to due process is, in essence, the right to a fair opportunity to defend against the States
accusations.).
25 Lipanovich, supra note 8, at 185.
26 See id. at 18689.
27 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (stressing that societys interest in trials
extends beyond convicting the guilty).
24

28 U.S. DEPT OF JUSTICE, UNITED STATES ATTORNEYS MANUAL 1-1.100 (1997), available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/.
29

OSULLIVAN, supra note 9, at 877 n.4 (quoting id. at 9-23.214).

Lipanovich, supra note 8, at 18889.
31 See Kastigar v. United States, 406 U.S. 441, 44647 (1972) (noting that immunity statutes
are essential to the effective enforcement of various criminal statutes); Murphy v.
Waterfront Commn, 378 U.S. 52, 9495 (1964) (White, J., concurring) (calling compelled
testimony one of the Governments primary sources of information).
30

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defendants.32 These courts, which include the Second and Third Circuits,
note the affirmative obligations (e.g., burden of proof) that prosecutors
have, as well as the restrictions they face (e.g., the inability to comment on
a defendants choice not to testify).33 Effectively, a defendant could be
acquitted at trial without presenting any evidence at all, while the
prosecution must convince the jury beyond a reasonable doubt of
defendants guilt.34 Despite the evidentiary standard and inability of the
prosecution to compel the defendants testimony, the Ninth Circuit has not
dismissed the idea of inequality, and instead posed the argument for
defense-witness immunity as a mere hypothetical: [W]here two
eyewitnesses tell conflicting stories, and only the witness testifying for the
government is granted immunity, the defendant would be denied any
semblance of a fair trial.35
2.

Protecting Constitutional Rights

The second argument in favor of granting defense-witness immunity

focuses on protecting a defendants constitutional rights. 36 Typically, legal
commentators rely upon constitutional arguments to advance their ideas,
and the area of defense-witness immunity is no exception.37 The right to a
fair trial is one of the most important notions underlying the American
criminal justice system; one way a fair trial is achieved is through granting
defense-witness immunity.38 Further support for defense-witness

32 See King, Jr., supra note 6, at 175 (examining the unilateral distribution of governmental
powers to the prosecutor and the corresponding lack of governmental powers afforded to
defendants); see, e.g., United States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980) (dismissing
this type of argument as entirely unpersuasive); see also United States v. Herman, 589 F.2d
1191, 1203 (3d Cir. 1978) (Due process has never yet been held to require that the defendant
be permitted to marshal precisely the same investigative and legal resources as the
prosecution . . . .).
33

Turkish, 623 F.2d at 774; see also Herman, 589 F.2d at 1203.
Lipanovich, supra note 8, at 19091.
35 United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991) (quoting United States v.
Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984)).
34

36 See U.S. CONST. amend. VI (providing that an accused has a constitutional right to have
compulsory process for obtaining witnesses in his favor); U.S. CONST. amend. V, XIV
(referring to the due process clause under both amendments, depending on whether the
prosecutor represents the state or the federal government).
37

See, e.g., Howard J. Vogel, The Ordered Liberty of Substantive Due Process and the Future of
Constitutional Law as a Rhetorical Art: Variations on a Theme From Justice Cardozo in the United
States Supreme Court, 70 ALB. L. REV. 1473, 154549 (2007) (discussing the formulation of
constitutional arguments).
38

Estelle v. Williams, 425 U.S. 501, 503 (1976) (concluding that the right to a fair trial is a

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immunity is found in various parts of the Constitution, as well as Supreme

Court precedent.39
The Sixth Amendment supports defense-witness immunity.40 The Sixth
Amendment states, the accused shall enjoy the right . . . to have
compulsory process for obtaining witnesses in his favor.41 In Washington v.
Texas, the Supreme Court detailed the Sixth Amendments importance with
respect to a defendants case and stated:
The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense, the right to present the defendants version of the facts
as well as the prosecutions to the jury so it may decide where the
truth lies.42

The Supreme Court went further and declared, [t]his right is a

fundamental element of due process of law.43
The Due Process Clauses of the Fifth and Fourteenth Amendments also
support defense-witness immunity.44 In Chambers v. Mississippi, the
Supreme Court held that, [t]he right of an accused in a criminal trial to
due process is, in essence, the right to a fair opportunity to defend against
the States accusations.45 Accordingly, defendants argue that due process
requires providing immunity to a defense witness to ensure that the
defendant is able to fully present a defense.46 Without the immunity power,
a defendants due process rights may be violated because witnesses with
relevant testimony may refuse to take the stand for fear of future
prosecution or may take the stand and assert the Fifth Amendment
privilege.47 In either situation, the defendants due process rights are

fundamental liberty); Lipanovich, supra note 8, at 18586 (arguing that defense-witness

immunity is needed in order to protect a defendants constitutional rights, including the right
to a fair trial).
39 See Lipanovich, supra note 8, at 18591 (referencing Supreme Court cases and
constitutional amendments that support granting defense-witness immunity).
40

See U.S. CONST. amend. VI.

Id.
42 388 U.S. 14, 19 (1967).
43 Id.
44 See U.S. CONST. amend V, XIV.
45 410 U.S. 284, 294 (1973) (finding a violation of due process where the court denied the
defendants motion to treat his own witness, the man who confessed to the crime the
defendant was on trial for, as hostile).
46 See United States v. Straub, 538 F.3d 1147, 1155 (9th Cir. 2008).
47 See id. at 1156 (contemplating the problems with denying immunity to defense
witnesses); Govt of V.I. v. Smith, 615 F.2d 964, 967 (3d Cir. 1980) (providing an example
where the prosecution failed to provide immunity to the defense witness, who ultimately
41

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violated because the court and the jury will not hear the relevantand
sometimes exculpatorytestimony.48
II. The Circuit Split: How to Approach Defense-Witness Immunity
Although every circuit court has ruled on the issue of defense-witness
immunity, the courts are split on how specifically to deal with it. 49 Three
prominent approaches have surfaced: (1) the Third Circuits effective
defense theory; (2) the Second Circuits prosecutorial misconduct majority50
approach; and (3) the Ninth Circuits prosecutorial misconduct minority51
approach.52 However, under any of these judicial approaches, it is very rare
for a defendant to receive immunity for a key witness.53
A. The Third Circuits Effective Defense Theory
1.

Government of Virgin Island v. Smith

In Government of Virgin Island v. Smith, the Third Circuit adopted an

approach to defense-witness immunity called the effective defense
theory.54 In Smith, four defendants were on trial for robbing Roy Phipps
(Phipps).55 Three of the defendants moved to introduce testimony from
Ernesto Sanchez (Sanchez), who previously told the police that he,
Scotto, Mon, and Mouth, were the men who committed the crimes
against Phipps.56 One defendant, Elvis Smith (Elvis), was known as

invoked the Fifth Amendment when he took the stand).

48

See Straub, 538 F.3d at 1155; Smith, 615 F.2d at 967.

See infra Part II.AC.
50 This approach has been deemed the majority approach because ten of the twelve circuit
courts have the ability to grant immunity if the prosecutor is found to have abused discretion
in granting immunity, making this approach the most widely used amongst the circuits.
Lipanovich, supra note 8, at 181.
49

51

The Ninth Circuits prosecutorial misconduct approach is the minority one since most of
the circuit courts use the Second Circuits approach. Id.
52

See infra Parts IIIV.

See, e.g., United States v. Davidson, No. H-10-201-3S, 2010 WL 3521726, at *4 (S.D. Tex.
Sept. 8, 2010) (rejecting the defendants request for witness immunity when the court was
unable to locate a decision within the Fifth Circuit where a court found that the government
used its immunity privilege to unfairly skew the fact-finding process or where due process or
other extraordinary circumstances required the court to grant use immunity to a defense
witness.).
53

54 See 615 F.2d 964, 96974 (3d Cir. 1980) (formulating the effective defense theory of
defense-witness immunity).
55
56

Id. at 966.
Id. at 96667. The nicknames used by Sanchez for the other perpetrators of the crime

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Scotto.57 Therefore, Sanchezs statement would have exculpated the other

three defendants,58 but would have incriminated Elvis.59
At trial, the defendants called Sanchez as a witness, hoping that his
testimony would reveal his previous statement to the police.60 However,
Sanchez was uncooperative and asserted the Fifth Amendment privilege
against self-incrimination.61 The defendants attempted to introduce the
statement by declaring Sanchez an unavailable witness under an exception
to the hearsay rule.62 The government argued that it would be unable to
cross-examine Sanchez under those circumstances.63 The trial court agreed
and did not admit Sanchezs previous statement to the police.64
The defendants then requested a grant of immunity for Sanchez. 65 An
authority in the Virgin Island Attorney Generals office agreed to provide
immunity for Sanchez as long as the U.S. Attorney consented. 66 For
unknown reasons, this consent was never granted, and the potentially
exculpatory evidence which the defen[dants] desired to offer through
Sanchez testimony[] was never presented to the jury.67 All four
defendants were convicted for robbery; the three defendants who had
sought to admit Sanchezs statement appealed on the grounds that their
due process rights were violated by failure to grant immunity to
Sanchez.68
2.

The Third Circuits Effective Defense Theory

The Smith court acknowledged that withholding exculpatory facts from

the jury violates a defendants due process rights.69 The Third Circuit
understood that a courts power to grant judicial immunity must be

were not nicknames for three of the defendants. Id.

57

Id.
Collectively these three defendants will be referred to as the defendants, whereas the
fourth defendant, Elvis Smith, will be referred to as Elvis.
58

59

Smith, 615 F.2d at 967.

Id.
61 Id.
62 Id.
63 Id.
64 Id.
65 Smith, 615 F.2d at 967.
66 Id.
67 Id.
68 Id.
69 Id. at 970.
60

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limited.70 Therefore, the court presented five conditions that must be met
before a court may grant immunity: (1) immunity must be properly
sought in the district court; [(2)] the defense witness must be available to
testify; [(3)] the proffered testimony must be clearly exculpatory; [(4)] the
testimony must be essential; and [(5)] there must be no strong
governmental interests which countervail against a grant of immunity.71
The Third Circuits approach relies heavily on the third and fourth
requirements that the witness testimony must be clearly exculpatory
and essential.72 The Third Circuit emphasized that a defense witness will
be denied immunity if the proffered testimony is found to be ambiguous,
not clearly exculpatory, cumulative or if it is found to relate only to the
credibility of the governments witnesses.73 Ultimately, the Third Circuit
was attempting to create a new remedy to protect an established righta
defendants right to present an effective defense. 74 The court acknowledged
that the common remedy of granting a new trial would be ineffective in the
Smith case because the defendants still would not be able to present the
exculpatory evidence.75 Thus, the effective defense theory was born.76
B. The Second Circuits Prosecutorial Misconduct Majority Approach
The Second Circuits approach focuses on prosecutorial misconduct.77
Not surprisingly, every circuit court allows at least the limited availability
of defense witness immunity if prosecutorial misconduct can be shown.78
1.

United States v. Ebbers

Ebbers was the Chief Executive Officer of the publicly traded

70

Id. at 972.
Smith, 615 F.2d at 972 (drawing on both the Chambers and Herman decisions). See
Chambers v. Mississippi, 410 U.S. 284, 297, 302 (1973); United States v. Herman, 589 F.2d 1191,
1204, 1207, 1213 (3d Cir. 1978).
71

72

Smith, 615 F.2d at 972.

Id.
74 Id. at 971.
75 Id.
76 See id. at 972.
77 See infra Part II.B (referring to the Second Circuit, or prosecutorial misconduct majority
approach).
73

78

Lipanovich, supra note 8, at 181. Most circuits require that in order to grant witness
immunity the level of prosecutorial misconduct must deliberately distort the fact-finding
process. Id. at 182. Unsurprisingly, in these circuits defense-witness immunity has never been
granted. Id.

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company, WorldCom, Inc. (WorldCom).79 Between the end of 2000 and

the beginning of 2002, Ebbers concealed WorldComs decline in
performance by fabricating the companys financial records.80 At trial,
Ebbers was convicted of conspiracy, securities fraud, and related crimes
and sentenced to twenty-five years in prison.81 On appeal, he argued that
the district court erred in permitting the government to introduce
testimony by immunized witnesses while denying immunity to potential
defense witnesses who were rendered unavailable to Ebbers by their
invocation of the privilege against self-incrimination.82 Ebbers further
argued, he was denied a fair trial because the government granted
immunity only to witnesses whose testimony incriminated him and not to
witnesses whose testimony would exculpate him but who would have
invoked the privilege against self-incrimination if called to testify.83
2.

Ebbers Prosecutorial Misconduct Majority Approach

In Ebbers, the Second Circuit drew on its previous decision in United

States v. Burns84 and set forth the test for determining whether the extent of
the prosecutorial misconduct warrants the grant of defense witness
immunity.85 In doing so, the court stated that such a decision requires
considering whether:
(1) the government has engaged in discriminatory use of
immunity to gain a tactical advantage, or through its own
overreaching, has forced the witness to invoke the Fifth
Amendment; and (2) the witness testimony will be material,
exculpatory and not cumulative and is not obtainable from any
other source.86

The Second Circuits approach is a two-prong test.87 Essential to this

approach is that there must be some type of prosecutorial misconduct or
governmental abuse.88 Prosecutorial misconduct can occur in two ways: (1)
if the prosecutor grants immunity to the prosecution witness and denies

79

United States v. Ebbers, 458 F.3d 110, 112 (2d Cir. 2006).
Id.
81 Id.
82 Id.
83 Id. at 117.
84 United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982) (inspiring the Second Circuits
approach to defense-witness immunity in Ebbers) .
80

85

See Ebbers, 458 F.3d at 118; Burns, 684 F.2d at 1077.

Burns, 684 F.2d at 1077.
87 Ebbers, 458 F.3d at 119.
88 Id.
86

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immunity to the defense witness with the intent of distorting the factfinding process;89 and (2) if the prosecutor threatens or badgers a potential
defense witness in order to discourage him from testifying. 90 Showing
either form of prosecutorial misconduct satisfies the first prong of the
Second Circuits approach.91 Although, denying immunity to one witness
while granting immunity to another does not amount to prosecutorial
overreaching per se.92 Similarly, there is no prosecutorial overreach when
the immunity-seeking witness is a target for future prosecution.93 The
Second Circuit further explained that this test requires a district court [to]
find facts as to the governments acts and motives and then balance factors
relating to the defendants need for the evidence and its centrality, or lack
thereof, to the litigation.94
C. The Ninth Circuits Prosecutorial Misconduct Minority Approach
The Ninth Circuit also focuses on prosecutorial misconduct in its
approach to defense-witness immunity,95 and it has been coined the
prosecutorial misconduct minority approach.96 Before United States v.
Straub, the Ninth Circuit was unclear about whether a defendant
requesting immunity must show that the prosecutors purpose was to
distort the fact-finding process, or whether prosecutorial actions that had
the effect of distortion were enough to trigger immunity.97 Straub clarified
how courts in the Ninth Circuit should approach defense-witness
immunity.98

89 Id.; United States v. Angiulo, 897 F.2d 1169, 1192 (1st Cir. 1990); United States v. Shandell,
800 F.2d 322, 324 (2d Cir. 1986); United States v. Todaro, 744 F.2d 5, 10 (2d Cir. 1984).
90 See Ebbers, 458 F.3d at 119; United States v. Lord, 711 F.2d 887, 891 (9th Cir. 1983); United
States v. Morrison, 535 F.2d 223, 229 (3d Cir. 1976). This type of misconduct originated in Webb
v. Texas, 409 U.S. 95, 9596 (1972) (per curiam), where a judge continually warned the witness
about the penalties of perjury, which forced the witness to invoke the Fifth Amendment. See
Carter v. United States, 684 A.2d 331, 341 (D.C. 1996) (en banc) (discussing the prosecutorial
misconduct in Webb).
91

Blissett v. Lefevre, 924 F.2d 434, 442 (2d Cir. 1991).

See id.
93 Shandell, 800 F.2d at 324; see United States v. Turkish, 623 F.2d 769, 778 (2d Cir. 1980).
94 Ebbers, 458 F.3d at 118.
95 United States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008) (articulating the Ninth Circuit
approach to defense-witness immunity and reinforcing the first approach discussed in this
Note, centered on prosecutorial misconduct).
92

96 See id. at 1162. Throughout this Note, this approach will be referred to as the Ninth
Circuit Approach.
97
98

Lipanovich, supra note 8, at 183 (emphasis in original).

538 F.3d at 1162.

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United States v. Straub

In United States v. Straub, police executed a search warrant and arrested

Straub at his home.99 There, police uncovered marijuana plants and selling
bags.100 The police investigation discovered that Straub was involved in a
wide-ranging and long-standing conspiracy to manufacture and distribute
methamphetamine.101 Straub was part of a gang known as The White
Neck Crew (The Crew) that would unlawfully enter the homes of other
drug dealers to steal money and drugs. 102 Over Straubs five-year
involvement, Straub and The Crew committed several robberies, including
one where Straub and an accomplice carried and used a firearm in
connection with an attempt to rob Robert Garrett and take more than 100
marijuana plants.103 Straub purportedly discharged a gun during this
robbery.104 Ultimately, Straub was charged with conspiracy, possession
with intent to distribute, and manufacture of methamphetamine and
marijuana, along with charges related to the carrying, using, and
discharging of a firearm in connection with the attempted robbery of
Robert Garrett . . . .105
At trial, Straub wanted to impeach the prosecutions star witness, Jacob
Adams (Adams), by introducing a prior inconsistent statement through
another witness, Mike Baumann (Baumann).106 The defense knew
Baumann would assert his Fifth Amendment privilege against selfincrimination.107 The court did not grant immunity under the useimmunity statute, and Straub was convicted and sentenced to 272 months
in prison.108
On appeal, Straub challenged his conviction, arguing the district court
erred in its denial of a request to compel the prosecution to grant use
immunity to defense witness Baumann.109 The Ninth Circuit agreed and
remanded the case, ordering the district court to enter a judgment of

99

Id. at 114849.
Id. at 1149.
101 Id.
102 Id.
103 Id.
104 Straub, 538 F.3d at 1149.
105 Id. Robert Garrett was shot during the attempted robbery. Id.
106 Id. at 1150.
107 Id.
108 Id. at 1151; see 18 U.S.C. 6002 (2012).
109 Straub, 538 F.3d at 1151.
100

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acquittal on the shooting charges unless the prosecution granted immunity

to Baumann or did not use Adamss testimony on retrial.110
2.

Straubs Prosecutorial Misconduct Minority Approach

In Straub, the Ninth Circuit created a new test for defense-witness

immunity.111 It held that in order to compel use immunity for a defense
witness, the defendant must demonstrate that: (1) the defense witness
seeking immunity must have relevant testimony; and (2) either (a) the
prosecution intentionally caused the defense witness to invoke the Fifth
Amendment[s] self-incrimination protection;112 or (b) the prosecution
granted immunity to its own witness, but denied immunity to a defense
witness whose testimony would have directly contradicted that of the
government witness.113 Under either scenario, if the prosecutors actions
result in a distortion of the fact-finding process, such that the defendant
was denied his due process right to a fundamentally fair trial, then the
defense witness must be granted use immunity.114

ANALYSIS
The Third, Second, and Ninth Circuit approaches to defense-witness
immunity demonstrate the various competing interests at play during a
criminal trial.115 While the Third Circuit approach articulates the five-factor
effective defense theory, the Second and Ninth Circuits focus on the
prosecutorial misconducts effect on a defendants ability to defend
himself.116 The substantial difference between the circuit court approaches
to defense-witness immunity, along with the serious constitutional issues
involved, demonstrate the need for a universal approach.117

110

Id. at 1166.
See id.
112 Id.
113 Id.
114 Id.
115 See supra Part II.
116 See supra Parts II.A.2 C.
117 See infra Part V.
111

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III. Analysis of the Third Circuit Approach and the Problems with
Applying It
A. The Reasoning Behind the Third Circuit Approach
As previously discussed, the Third Circuit approach, or the effective
defense theory, was derived from Government of Virgin Islands v. Smith.118 It
has been deemed the effective defense theory because it provides federal
courts with the inherent power to grant immunity to witnesses whose
testimony is essential to an effective defense.119 This judicial power is
independent of the prosecutors statutory ability to grant immunity to
defense witnesses, and should be exercised to protect the fact-finding
process that occurs during a trial.120 The Third Circuit adopted this
approach because it believed that a criminal defendant should not be
convicted because a witness, whose testimony would exonerate the
defendant, has invoked the privilege against self-incrimination.121 It
deemed the empowerment of federal courts to grant immunity consistent
with other remedies where due process violations have occurred.122 Despite
its good intent, the Third Circuits motives for creating the effective defense
theory fall short of protecting a defendants ability to elicit favorable
testimony necessary to ensure a fair trial.123
The effective defense approach attempted to alleviate an impediment
to the defendant by acknowledging the unfair effect that withholding
exculpatory information can have on a defendants due process rights.124
However, it created insurmountable requirements and thus failed to
achieve its goal.125 Under this approach, judicial immunity is triggered,
not by prosecutorial misconduct or intentional distortion of the trial
process, but by the fact that the defendant is prevented from presenting
exculpatory evidence which is crucial to his case.126 This is a challenging

118

See 615 F.2d 964, 972 (3d Cir. 1980); see also supra Part II.A.
See United States v. Pennell, 737 F.2d 521, 526 (6th Cir. 1984).
120 See Smith, 615 F.2d at 969.
121 Pennell, 737 F.2d at 527.
122 See Smith, 615 F.2d at 971 (discussing high-profile cases granting new trials to protect a
defendants due process rights).
119

123

See infra Part III.B (analyzing the problems with the Third Circuit approach).
Smith, 615 F.2d at 972; see United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990)
(noting that the courts power to grant defense-witness immunity, under the effective defense
theory, is grounded in a defendants due process right to have exculpatory evidence
presented to the jury).
124

125
126

See Angiulo, 897 F.2d at 1191; Smith, 615 F.2d at 972.

Smith, 615 F.2d at 969. This is the main difference between the Third Circuit approach

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burden to meet.127 In fact, only five of the forty-six reported decisions from
the Third Circuit sided with the defense.128 With only about 11% of
defendants being awarded immunity so as to create reasonable doubt in
the minds of the jury, this approach does not provide defendants with a
legitimate tool to present favorable evidence.129 Under the faade of
protecting defendants constitutional rights, the Third Circuit is able to
appear impartial and as though fair trials are regularly conducted, when in
reality the Third Circuit is reluctant to elevate the rights of an accused over
the governments interests.130 Moreover, this approachs requirements
permit a prosecutors desire to charge an immunity-seeking defense
witness (with a crime or public interest disservice) to offset a grant of
immunity.131 The fact that courts in the Third Circuit seldom grant
immunity to criminal defendants clearly demonstrates that this approachs
requirements are unattainable.132
B. The Problems Presented by the Third Circuits Approach
There are three major problems presented by the Third Circuits
effective defense theory: (1) it creates a separation of powers issue; 133 (2) it
requires judges to conduct a balancing test; 134 and (3) it places a high
burden on defendants.135
Courts have been reluctant to adopt the Third Circuits effective
defense approach to defense-witness immunity for a number of reasons.136
First, is the separation-of-powers dilemma.137 The separation-of-powers

and the other two approaches that focus on prosecutorial misconduct. See United States v.
Straub, 538 F.3d 1147, 1162 (9th Cir. 2008); United States v. Burns, 684 F.2d 1066, 1077 (2d Cir.
1982).
127 Lipanovich, supra note 8, at 181 (discussing defendants difficulty in meeting these
requirements).
128

Id.
See id.
130 See Earl v. United States, 361 F.2d 532, 53334 (D.C. Cir. 1966) (discussing concerns
about a defendants inability to provide immunity to a witness with exculpatory information);
FEDERAL PROCEDURE, supra note 19.
129

131

Smith, 615 F.2d at 973.

See Lipanovich, supra note 8, at 181.
133 Smith, 615 F.2d at 971.
134 See Lipanovich, supra note 8, at 196.
135 See id.
136 United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991); see FEDERAL PROCEDURE,
supra note 19.
132

137

Smith, 615 F.2d at 97172; see FEDERAL PROCEDURE, supra note 19.

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doctrine is a constitutional notion that the three branches of government

have different powers and functions.138 Specifically, the effective defense
approach requires courts to assume inherent authority to grant judicial
immunity themselves, creating a separation-of-powers problem because
the power to grant witness immunity is of legislative origin, and was
granted to the executive branch.139 The Third Circuit is alone in its
adoption of the effective defense theory, and even acknowledged the
potential separation-of-powers problem that this approach poses.140 Courts
frequently decline to adopt this approach because of the separation of
powers problems.141 Courts that oppose the Third Circuits approach argue
that permitting the judiciary to exercise this type of power, absent approval
from the legislature, violates the separation-of-powers principle.142
Another reason courts criticize the effective defense theory is because it
requires judges to conduct a balancing test. 143 Courts are required to weigh
a defendants need for particular witnesses against the prosecutors
reasons for not seeking immunity for the witnesses herselfan exercise not
well-suited for judicial decision making.144 This argument is unsound
because at no point should prosecutorial interests outweigh a defendants
constitutional right to a fair trial.145 Moreover, this argument should not be
used as a reason to deny immunity to a defense witness because that
would create an open door argument for prosecutors. 146 Prosecutors would
be able to argue that they have an interest in prosecuting the same witness
who has the essential and clearly exculpatory information that could
be helpful to the defendant, and the court could conclude that the
governmental interests outweigh the defendants rights.147 This argument is

138

Phillip B. Kurland, The Rise and Fall of the Doctrine of Separation of Powers, 85 MICH. L.
REV. 592, 593 (1986). The separation of powers is necessary in order to ensure that there is a
balanced government. See id.
139 United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990).
140 See Angiulo, 897 F.2d at 1191 (This theory has been rejected . . . by virtually every other
court that has considered the issue . . . .); Smith, 615 F.2d at 971; see, e.g., United States v.
Tindle, 808 F.2d 319, 325 n.4 (4th Cir. 1986) (emphasizing that the courts have criticized the
effective defense theory and labeling it the minority approach to defense-witness immunity).
141 See Mohney, 949 F.2d at 1401.
142 Angiulo, 897 F.2d at 1191; see, e.g., United States v. Pennell, 737 F.2d 521, 527 (6th Cir.
1984) (pointing out the separation of powers problem presented by the Third Circuits
effective defense theory approach).
143

See Angiulo, 897 F.2d at 1191.

Id.; see United States v. Turkish, 623 F.2d 769, 77577 (2d Cir. 1980).
145 Lipanovich, supra note 8, at 197 (emphasis added).
146 Id.
147 See Govt of V.I. v. Smith, 615 F.2d 964, 972 (3d Cir. 1980); Lipanovich, supra note 8, at
144

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invalid and should never enter into a decision of whether to grant use
immunity because then the witness is not ensured absolute immunity, and
thus the prosecutor will still be able to charge the witness.148
Finally, the Third Circuits effective defense theory has been criticized
because of the high burden it places on defendants. 149 The standard
requiring the witnesss testimony to be both essential and clearly
exculpatory is too challenging for defendants.150 This high burden is also
problematic because it does not provide enough protection for a
defendants rights.151 There are many situations where a defense witnesss
testimony may be essential or clearly exculpatory, but since both are
required the defendant is left without this witnesss testimony.152 Due to
the obstacles associated with this approach, the Third Circuits effective
defense theory should not be adopted or even considered by the U.S.
Supreme Court.153
IV. Problems Presented by the Second Circuits Approach
The Second Circuits approach to defense-witness immunity is inferior
to the Ninth Circuits approach because: (1) it places too high of a burden
on the defendant;154 (2) it wrongly focuses on the prosecutors intent;155 and
(3) courts are reluctant to find prosecutorial misconduct.156
The Second Circuits approach to defense-witness immunity presents a
number of problems.157 The biggest issue with the Second Circuits
approach arises from the high burden of proof a defendant must meet. 158 A

197.
148

18 U.S.C. 6002 (2012) (providing only that a witnesss testimony will not have full,
absolute immunity because the testimony may still be used against him in a future criminal
prosecution for perjury, giving a false statement, or otherwise failing to comply with the [use
immunity] order).
149

Lipanovich, supra note 8, at 196; see supra Part III.B.

Lipanovich, supra note 8, at 196; see Smith, 615 F.2d at 972.
151 Lipanovich, supra note 8, at 196.
152 See id.
153 See supra Part III.B.
154 See United States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988); United States v. Burns, 684
F.2d 1066, 1077 (2d Cir. 1982).
150

155

See Lipanovich, supra note 8, at 194.

Id. at 196 (noting that [prosecutorial misconduct] has never been found under the
[Second Circuit]s test for defense witness immunity).
157 See id. at 183 (pointing out potential problems with the Second Circuits prosecutorial
misconduct approach).
156

158 See United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006); Lipanovich, supra note 8, at
183 (referring to the more stringent definition of prosecutorial misconduct, as applied by the

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249

defendant is required to show more than just that the witness

unquestionably has exculpatory and material evidence not available from
any other source.159 A defendant is required to make an additional showing
that the prosecutors actions were deliberate and discriminatory.160 Thus,
the witness will not be granted immunity if the defendant cannot
demonstrate that the prosecutor acted deliberately and discriminatorily in
denying the witness immunity.161 This causes courts to erroneously focus
on the prosecutors intent.162 This approach will often be an ineffective and
inadequate means to ensure a defendants right to a fair trial is met.163
Simply because the prosecution did not intend to place a defendant at any
sort of disadvantage does not mean that the prosecutors decision did not
have that effect.164
Finally, the Second Circuits approach fails because federal courts
rarely find prosecutorial misconduct.165 If courts are hesitant to find
prosecutorial misconduct, the Second Circuits approach will be ineffective
at ensuring defendants have a fair opportunity to defend against the
States accusations.166 Similar to the Third Circuit, the Second Circuit
approach is flawed because it fails to accomplish its purported goal.167
While it attempts to preserve a defendants constitutional rights, the
Second Circuit approach regularly sides with the prosecution, thus
indirectly diminishing the defendants rights.168

Second Circuit).
159 See, e.g., United States v. Gottesman, 724 F.2d 1517, 1524 (11th Cir. 1984) ([D]istrict
courts may not grant immunity to a defense witness simply because that witness possesses
essential exculpatory information unavailable from other sources.); Autry v. Estelle, 706 F.2d
1394, 1401 (5th Cir. 1983) (rejecting the Third Circuits notion that judicial immunity could
come into play when the defendant is prevented from presenting exculpatory evidence
which is crucial to his case) (quoting Govt of V.I. v. Smith, 615 F.2d 964, 969 (3d Cir. 1980)).
160

Ebbers, 458 F.3d at 119.

See id; Lipanovich, supra note 8, at 183.
162 See Lipanovich, supra note 8, at 194.
163 See, e.g., Ebbers, 458 F.3d at 119.
164 Compare United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (granting immunity
when prosecutorial actions have the effect of distorting the fact-finding process), with Ebbers,
458 F.3d at 119 (requiring that the defendant show that the prosecutors actions were a
deliberate intent to distort the fact-finding process).
161

165 See Lipanovich, supra note 8, at 196 (noting that [prosecutorial misconduct] has never
been found under the [Second Circuit]s test for defense witness immunity).
166

Chambers v. Mississippi, 410 U.S. 284, 294 (1973).

See supra Part III.
168 See Lipanovich, supra note 8, at 196.
167

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V. The Supreme Court Should Adopt the Ninth Circuit Approach

While the Third and Second Circuit approaches are inadequate for a
number of reasonsthe frequent insurmountable burden on defendants,
the separation of powers clash, the judicial balancing test, the focus on the
prosecutors intent, and the courts reluctance to find prosecutorial
misconductthe Ninth Circuit approach is best.169 The Ninth Circuit
approach is the best way to address defense-witness immunity because it is
more lenient,170 focuses on the effect of the prosecutors actions,171 and
balances grants of immunity for prosecutors and defendants. 172
Accordingly, the Supreme Court should address the issue of defensewitness immunity and adopt the Ninth Circuits superior approach.173
A. The Supreme Court Is the Correct Forum to Address the Issue of
Defense-Witness Immunity
The Supreme Courtrather than the legislatureshould address
defense-witness immunity.174 On many occasions, the Supreme Court has
created important rights for criminal defendants, including the Miranda
right against self-incrimination.175 As a result of criminal defendants
marginal place in society, an elected Congress will not represent their
interests.176 The constitutional foundation for courts to make or implement
protections for criminal defendants is found in both the Fifth and

169

See supra Parts IIIIV.

Compare United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (broadening
prosecutorial misconduct to include conduct that has the effect of distorting the fact-finding
process), with United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (limiting prosecutorial
misconduct only to conduct that deliberately distorts the fact-finding process).
170

171 Compare Straub, 538 F.3d at 1162 (holding prosecutorial misconduct includes actions that
have the effect of distorting the fact-finding process), with Ebbers, 458 F.3d at 119 (requiring
prosecutorial misconduct be shown by deliberate actions that distort the fact-finding process).
172

See Straub, 538 F.3d at 1157 (allowing courts to grant immunity for defense witnesses,
instead of making the immunity grants dependent on the prosecutors decisions).
173

See supra Part V.

See Lipanovich, supra note 8, at 197 (arguing that the Supreme Court, and not Congress,
should create the defense immunity right).
175 Miranda v. Arizona, 384 U.S. 436, 46772 (1966) (creating the Miranda rights for criminal
defendants). Contra Michigan v. Tucker, 417 U.S. 433, 444 (1974) (claiming that Miranda
warnings are not themselves rights protected by the Constitution but [are] instead measures
to insure that the [Fifth Amendment] right against compulsory self-incrimination [is]
protected).
174

176 Lipanovich, supra note 8, at 197 (stating that criminal defendants are not a popular
group, and thus they need the Supreme Court to protect their rights since Congress will not).

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Fourteenth Amendment Due Process Clauses. 177 Opponents to this position

argue that defense-witness immunity is an issue that should be dealt with
by Congress, but this is unlikely to happen because Congress is incapable
of effectively enacting such potentially controversial laws; thus, defendants
are left with no alternative.178 Accordingly, the Supreme Court must take
the responsibility to ensure criminal defendants rights are protected and
address the issue of defense-witness immunity.179
B. The Ninth Circuit Presents the Best Approach to Defense-Witness
Immunity
The Ninth Circuits more lenient prosecutorial misconduct approach
presents the best answer for defense-witness immunity.180 Under the Ninth
Circuit approach to defense-witness immunity a defendant is required to
show that the immunity-seeking witnesss testimony is relevant.181 Further,
the defendant must show that the government either: (1) intentionally
caused the witness to invoke the privilege against self-incrimination, in
order to distort the fact-finding process, or (2) denied immunity to a
witness whose testimony would contradict that of a prosecutorial witness,
having the effect of distorting the fact-finding process.182 This test expands
the definition of prosecutorial misconduct by allowing the defendant to
show either that the prosecutor intended to distort the fact-finding process
or that the prosecutors actions had the effect of distorting the fact-finding
process.183 This makes the Ninth Circuit approach superior because it offers
two ways whereby defendants can obtain immunity for these witnesses. 184

177 See U.S. CONST. amend. V, XIV; see, e.g., Chambers v. Mississippi, 410 U.S. 284, 294
(1973) (The rights to confront and cross-examine witnesses and to call witnesses in ones own
behalf have long been recognized as essential to due process.).
178 See United States v. Lenz, 616 F.2d 960, 963 (6th Cir. 1980) (While use immunity for
defense witnesses may well be desirable its proponents must address their arguments to
Congress, not the courts.) (citations omitted).
179 More specifically the Supreme Court should adopt the Ninth Circuits approach to
defense witness immunity. See infra Part V.BE.
180 See United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008); Lipanovich, supra note 8,
at 19495 (noting that the Ninth Circuits definition of prosecutorial misconduct is more
inclusive than the Second Circuits definition).
181

Straub, 538 F.3d at 1162.

Id.
183 Compare id. (broadening prosecutorial misconduct to include conduct that has the effect
of distorting the fact-finding process), with United States v. Ebbers, 458 F.3d 110, 119 (2d Cir.
2006) (limiting prosecutorial misconduct only to conduct that deliberately distorts the factfinding process).
182

184

See Straub, 538 F.3d at 1162.

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Having two avenues, both representing circumstances where the

defendants witness is unfairly denied immunity, helps preserve the
defendants right to a fair trial more than the other circuit approaches. 185
C. The Ninth Circuit Approach Is More Lenient in Application
The Supreme Court should adopt the Ninth Circuit approach because
it is more lenient.186 This leniency ensures that more defendants have the
opportunity to meet the requirements and obtain a fair trial.187 While some
may argue that the Ninth Circuit approach is too lenient and its
requirements are too broad, these opponents are wrong because the
approach still provide[s] reasonable limitations on defense witness
immunity.188
Opponents of defense-witness immunity have presented a number of
arguments,189 with three underlying rationales: (1) the immunity decision
should be left to the Executive [Branch], (2) the defense witness immunity
will be abused by witnesses practicing cooperative perjury, and (3) the
immunity grant will impede a future government prosecution.190
However, the arguments advanced against defense-witness immunity are
unpersuasive because of the important rights that immunity protects. 191
Opponents of defense-witness immunity argue that the immunity
statutes wording indicates that the Executive Branch is the only branch of
government that may grant immunity.192 Courts have interpreted this
language, many concluding that [w]hile use immunity for defense

185

Compare id. at 116162, with Ebbers, 458 F.3d at 119.

Compare Straub, 538 F.3d at 1162, with Ebbers, 458 F.3d at 119.
187 See United States v. Wilkes, 662 F.3d 524, 550 (9th Cir. 2011) (reinforcing the Ninth
Circuits commitment to an approach that holds prosecutors accountable when the defendant
does not receive a fair trial); Straub, 538 F.3d at 1164 (holding that the prosecutors conduct
had the effect of distorting the fact-finding process, and, as a result, denying the defendant a
fair trial); infra Part V.C (arguing that the Ninth Circuits approach is more lenient than either
the Second or Third Circuits approaches).
186

188 Lipanovich, supra note 8, at 196 (noting that the Ninth Circuit approach requires that the
testimony be relevant and contradict that of a government witness who has been granted
immunity, and includes prosecutorial misconduct that has the effect of distorting the factfinding process).
189

See id. at 180, 190 (addressing the various arguments against defense-witness immunity).
Id.; see Kastigar v. United States, 406 U.S. 441, 44647 (1972) (declaring immunity
statutes as essential to the effective enforcement of various criminal statutes).
191 See Ullmann v. United States, 350 U.S. 422, 438 (1956) (emphasizing the importance
immunity statutes have in the constitutional landscape).
190

192 See 18 U.S.C. 6003(a) (2012) (providing that a United States district court judge may
grant immunity, upon the request of the United States attorney).

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253

witnesses may [ ] be desirable . . . [those in favor of defense witness

immunity] must address their arguments to Congress, not the courts.193
Those opposed to defense-witness immunity have even argued that due to
separation-of-powers concerns, prosecutors are effectively insulate[d]
from granting defense-witnesses immunity.194 These arguments fail
because:
all courtsincluding those that have never found immunity
have cast aside this argument and made it clear that under
certain circumstances the refusal to grant immunity to a defense
witness would be an abuse of the discretion provided to the
[judicial branch of the] government by the immunity act.195

Although, any argument that defense-witness immunity violates the

separation-of-powers doctrine is erroneous if courts agree that in principle,
and under some circumstances, defense-witness immunity should exist.196
In this way, if courts recognize that immunity should exist, they cannot
also claim separation of powers problems when reconciling unfair judicial
practices.197
Opponents also argue that defense-witness immunity will cause
witnesses to lie and perjure themselves in order to get a friend or
accomplice acquitted.198 While this concern has muster, it is without merit
because this type of situation was directly addressed in the use-immunity
statute.199 The use-immunity statute carves out an exception where a
persons immune testimony may be used against him in a prosecution for
perjury; that is, a witness who was previously granted immunity can be
prosecuted for perjury if the witness provided false testimony while under
immunity.200 This eliminates any type of cooperative-perjury argument
since a witness who provides false testimony under the use immunity

193 United States v. Lenz, 616 F.2d 960, 963 (6th Cir. 1980) (finding no authority for defensewitness immunity in the Sixth Amendments compulsory process clause).
194

United States v. Moussaoui, 382 F.3d 453, 468 (4th Cir. 2004).
Lipanovich, supra note 8, at 180, 191 (emphasis added); see, e.g., United States v.
Washington, 318 F.3d 845, 855 (8th Cir. 2003) (finding that, under certain circumstances where
he abuses his discretion, the prosecutor may be compelled to grant immunity).
196 Lipanovich, supra note 8, at 180, 191.
197 See id.
198 See, e.g., Blissett v. Lefevre, 924 F.2d 434, 44142 (2d Cir. 1991) (finding that prosecutors
are best equipped to handle grants of immunity because it reduces the possibility of
cooperative perjury between the defendant and his witness).
195

199
200

See 18 U.S.C. 6002 (2012).

Id.

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statute may still be prosecuted for perjury.201

Finally, the last argument presented by those opposed to defensewitness immunitythat use-immunity grants will impede future
prosecutions of the witnessalso fails.202 While this argument may have
prevailed when courts granted transactional immunity,203 Congresss
adoption of use immunity renders this argument ineffective.204 The
Supreme Court has noted that there is little difference between a witness
invoking his Fifth Amendment privilege and being granted use immunity,
in that use immunity does not restrict the ability to bring future charges
any more so than invoking the Fifth Amendment.205 While courts may
consider the governments interest in a possible future prosecution as a
factor against granting immunity to a defense witness, it must again be
emphasized that no governmental interest should per se outweigh a
defendants constitutional right to a fair trial.206 In conclusion, the
arguments against granting immunity, while concrete and articulable, are
unpersuasive and do not overcome a defendants constitutional rights.207
D. The Supreme Court Should Adopt the Ninth Circuit Approach
Because it Focuses on the Effect of the Prosecutors Actions
The Supreme Court should adopt an approach that accounts for the
effect of the prosecutors actions.208 In this regard, the Supreme Court

201 See id. (providing that a witnesss immunized testimony may be used against him in a
perjury prosecution).
202

United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006).
Transactional immunity is immunity from prosecution for offenses to which compelled
testimony relates, whereas use immunity is full immunity from the use of compelled
testimony and evidence derived therefrom. Kastigar v. United States, 406 U.S. 441, 443
(1972).
203

204 Compare Earl v. United States, 361 F.2d 531, 533 (D.C. Cir. 1966) (applying a transactional
immunity statute, which allows a witness to avoid prosecution for any crimes referenced on
the stand), with Ebbers, 458 F.3d at 11822 (2d Cir. 2006) (applying the use immunity statute of
18 U.S.C. 6002, which restricts the amount of immunity a witness receives to only providing
that the witnesss testimony will not be used against him in a future prosecution).
205 Kastigar, 406 U.S. at 462 (We conclude that the immunity provided by 18 U.S.C. 6002
leaves the witness and the prosecutorial authorities in substantially the same position as if the
witness had claimed the Fifth Amendment privilege.).
206

See Govt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980) (articulating an approach to
defense-witness immunity that can consider the governments interest in denying immunity).
207 See Lipanovich, supra note 8, at 180, 19095 (deeming a defendants right to a fair trial as
more important than any possible arguments against grants of immunity for defense
witnesses).
208

See id. at 195 (pointing out the detrimental effects that prosecutorial misconduct can

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Circuit Split on Defense-Witness Immunity

255

should adopt the Ninth Circuits broader view of prosecutorial misconduct

because it encompasses actions that have the effect of distorting the factfinding process as opposed to only those that deliberately and intentionally
distort it.209 Straub demonstrates exactly the type of problem that can arise
from using the Second Circuits narrow and restricted approach to
prosecutorial misconduct.210 In Straub, it would have been difficult for the
defendant to prove the prosecutor had the intent to distort the fact-finding
process, even though the prosecutors actions clearly had that effect. 211
Thus, under the Second Circuits approach, the inability to prove intent on
behalf of the prosecutor would guarantee a denial of the defendants
immunity request,212 even though denying this request would result in a
due process violation because the defendant would not be able to defend
against the States accusations.213 By shifting the focus from intentional
prosecutorial misconduct to the effects of the prosecutorial conduct, more
defendant-adverse scenarios can be accounted for and less infringement on
defendants rights will occur.214
Additionally, intentional prosecutorial misconduct should not be a
requirement under the defense-witness immunity approach that the
Supreme Court ultimately adopts.215 The Second Circuits reliance on
prosecutorial misconduct as a necessary requirement in order for a
defendant to receive a fair trial is misplaced.216 Granting immunity to a
defense witness should be based upon whether the witnesss proffered
testimony is relevant and supports the defendants case.217 A defense

have on a defendant).
209 Compare Ebbers, 458 F.3d at 119 (requiring that prosecutorial misconduct be shown by
deliberate actions that distort the fact-finding process), with United States v. Straub, 538 F.3d
1147, 1162 (9th Cir. 2008) (holding that prosecutorial misconduct can be proven with actions
that have the effect of distorting the fact-finding process).
210 See Straub, 538 F.3d at 1155 (referring to the district courts ruling, which held that if
defendants were required to show prosecutorial misconduct, then Straubs claim would be
unsuccessful).
211

Id. at 1157.
See id.; Lipanovich, supra note 8, at 186.
213 Chambers v. Mississippi, 410 U.S. 284, 29495 (1973).
214 See Lipanovich, supra note 8, at 195 (arguing that the effects of prosecutorial misconduct
can have far more detrimental effects to a defendant than solely prosecutorial intent).
212

215

See id. at 196 (Prosecutorial misconduct should not be a requirement for the granting of
immunity.).
216 See id. at 19596 (opining that one problem with the Second Circuits approach is its
reliance on prosecutorial misconduct).
217 See Straub, 538 F.3d at 1157 (requiring that the defense witness seeking immunity have
relevant testimony).

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witnesss immunity, and the defendants due process rights, should not be
based on a defendants ability to prove a prosecutors deliberate
misconduct.218 Defense-witness immunity grants should depend on the
testimonys relevance and the effect of the prosecutors actions (i.e.,
selective immunity or the effect of distorting the fact-finding process).219
Since the Ninth Circuits approach focuses on the effect of the prosecutors
actions, whereas the Third and Second Circuit approaches do not, the
Supreme Court should adopt the Ninth Circuits approach.220

218

See id. at 1161 (The right to compel use immunity because of selective denial of
immunity is a right to due process . . . where the Constitution focuses our attention on the
fundamental fairness of the trial more than on the intentionswhether good or badof the
prosecution.); Chambers, 410 U.S. at 294 (noting that a defendants due process rights amount
the ability to put on a full defense); Lipanovich, supra note 8, at 19596 (arguing that a
defendants due process rights should be protected by an approach that grants immunity to
witnesses when the prosecutors misconduct has the effect of distorting the fact-finding
process).
219 See Straub, 538 F.3d at 115658 (holding that a defendant is denied a fair trial if the
prosecution uses selective immunity, by granting immunity to a government witness, but
denies it to a defense witness whose testimony directly contradicts that of the government
witness, or when the prosecutor commits misconduct that has the effect of distorting the factfinding process).
220

See supra Part V.B.

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E. The Ninth Circuit Approach Balances the Grants of Immunity for

Prosecutors and Defendants
The Supreme Court should adopt the Ninth Circuits approach because
it creates the perfect balance between granting immunity to prosecution
and defense witnesses.221 Opponents argue that a criminal prosecution
cannot be a place of equalized power because prosecutors have many
affirmative obligations.222 Accordingly, these opponents readily reject any
arguments advancing the idea that there should be a more equal balance of
power between prosecutors and defendants.223 Despite these
counterarguments, the idea of equal power between the two sides cannot
be so easily rejected.224
The Ninth Circuit approach acknowledges a power balance between
prosecutors and defendants, because it holds the prosecutors accountable
in grants and denials of immunity while it also provides another way for
defendants to get immunity for their witnesses (i.e., grants of immunity by
the court).225 One of the ways the Ninth Circuits approach equalizes the
power imbalance is through its standard of proof.226 The Ninth Circuits
approach requires only that the testimony be relevant, compared to
clearly exculpatory and essential to the defense.227 This standard still
maintains that the testimony be relevant and that it conflicts with an
immunized government witness, but lowers the standard from absolute

221 See Straub, 538 F.3d at 1157 (allowing courts to grant immunity for defense witnesses
instead of making the immunity grants dependent on the prosecutors decisions).
222

See United States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980).
E.g., id.; see also United States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978) (Due
process has never yet been held to require that the defendant be permitted to marshal
precisely the same investigative and legal resources as the prosecution . . . .).
223

224 See Lipanovich, supra note 8, at 195 (Despite the various arguments against defense
witness immunity . . . none overcome the need to ensure a fair trial for every defendant.).
225 See Straub, 538 F.3d at 1157 (providing for court-granted use immunity to defense
witnesses meeting certain criteria).
226 Id. (providing a prosecutorial misconduct approach to defense-witness immunity).
227 Compare id. (requiring only relevance), with United States v. Ebbers, 458 F.3d 110, 118 (2d
Cir. 2006) (citations omitted) (employing a prosecutorial misconduct approach which requires
that testimony of the witness be material, exculpatory and not cumulative), and Govt of V.I.
v. Smith, 615 F.2d 964, 974 (3d Cir. 1980) (explaining that the effective defense theory requires
defense-witness immunity when it is found that a potential defense witness can offer
testimony which is clearly exculpatory and essential to the defense case and when the
government has no strong interest in withholding use immunity). This more flexible
relevance standard predates Straub. See United States v. Westerdahl, 945 F.2d 1083, 1086 (9th
Cir. 1991).

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terms (e.g., clearly and essential).228 This provides a defendant with

another option to defend himself because a key defense witness, who
would never be granted immunity under the Second or Third Circuits
approaches, may be granted immunity under the Ninth Circuit
approach.229 The witness may have testimony that is relevant or
exculpatory, but this testimony would not be allowed under the Second
Circuit approach unless the defendant could show intentional
prosecutorial misconduct.230 This same testimony would also be barred
under the Third Circuits approach because the testimony not only has to
be exculpatory and essential, but the governments interests in not granting
immunity can also override a grant of immunity.231 Therefore, the Ninth
Circuit is the best approach because: it enables the defendant to put on a
full defense; provides the jury with more information to use during their
fact-finding process; and, under those circumstances, it is more likely that
the defendant receives a fair trial.232

CONCLUSION
In order to ensure a defendants constitutional rights are protected and
not infringed upon, the Supreme Court should adopt the Ninth Circuits
defense-witness immunity approach. While three approaches to defensewitness immunity have emerged, the Second and Third Circuit approaches
fail to address the paramount interest at stakea defendants
constitutional rights, especially the right to a fair trial. The Second Circuits
approach is too focused on requiring the defendant to prove prosecutorial
misconduct. The Third Circuits approach has too high of a burden. Since
both the Second and Third Circuit approaches are inadequate, the Supreme

228

Lipanovich, supra note 8, at 180, 196.

Compare Straub, 538 F.3d at 1157 (requiring only relevance), with Ebbers, 458 F.3d at 118
(employing a prosecutorial misconduct approach which requires that testimony of the witness
be material, exculpatory and not cumulative), and Smith, 615 F.2d at 974 (explaining that the
effective defense theory requires defense witness immunity when it is found that a potential
defense witness can offer testimony which is clearly exculpatory and essential to the defense
case and when the government has no strong interest in withholding use immunity).
230 See Ebbers, 458 F.3d at 118 (using a prosecutorial misconduct approach which demands
that the witnesss testimony be material, exculpatory and not cumulative, and that the
defendant show that prosecutorial misconduct occurred).
229

231

See Smith, 615 F.2d at 974 (explaining that the Third Circuits approach to defensewitness immunity requires testimony that is is clearly exculpatory and essential to the
defense case, as well as it be a situation where the government has no strong interest in
withholding use immunity).
232

See Lipanovich, supra note 8, at 180, 18485.

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Court should adopt the approach formulated by the Ninth Circuit. The
Ninth Circuits approach is superior because it expands the idea of
prosecutorial misconduct, broadening the Second Circuits definition, and
provides only that the testimony be relevant, as opposed to the stringent
clearly exculpatory and material standards set forth by the Third
Circuit. While there may be concerns regarding the expansion of defensewitness immunity, none of these concerns override the defendants
constitutional right to a fair trial where the defendant can fully put on a
defense. In order to ensure a defendants due process rights are protected,
the Supreme Court must adopt the Ninth Circuits approach to defensewitness immunity.