Baltimore Officer Porter's Appeal Fifth Amendment Versus Immunity: A True Constitutional Challenge

Baltimore Officer Porter’s Case Involving the Debate Between the Fifth Amendment and Granting of Immunity to Testify as a Witness While Being a Defendant in the Same Case

BY: Dr. Peter A. Barone, Esq. 

Under the Fifth Amendment to the Constitution, a person may not be compelled to testify against himself. The prosecution may require a witness to testify, but to do so, must first confer immunity upon the witness. Immunity from prosecution may be granted by the prosecutor at several stages in the criminal process. The prosecutor can grant a witness immunity at the grand jury stage and then at any other stage of the criminal process or proceedings and this is usually done at the trial stage of the process. The interesting challenge here is that the witness is also a defendant in the very same case. When discussing Immunity it must be understood that there are two types of prosecutorial immunity that apply during the criminal process. 

Different Types of Immunity 

There are two types of immunity that are at the disposal of the prosecutor which can be used in a case prior to the case actually getting into the court room and the judge getting involved with the process. The first type of immunity is known as "Transactional immunity" which is a very broad type of immunity.  A person who is a witness and who have been given transactional immunity cannot be prosecuted for the underlying offense; however, if during their testimony if they lie or misrepresent information during their testimony under oath they can be prosecuted for the crime or perjury. This type of immunity is rarely given in a criminal case unless the person has a vast amount of unbelievable information that they can testify to in a very major case.

There is a second type of immunity, and the most used in criminal cases by prosecutors, is known as Use Immunity. When discussing use immunity and comparing and contrasting them there is a difference in the fact that use immunity is narrower in its nature and scope.  In use immunity the statements made by the witness may not be used against the witness; however, the prosecution does not agree that it will never prosecute the person for the crime but cannot use their testimony to prosecute them. With this type of immunity the witness may actually be prosecuted at a later time based upon independent and untainted evidence. In addition, the immunity is only valid in the jurisdiction of that state and not in a federal proceeding or a civil proceeding that may be pending or may be created due to the witness’s statement while under the limited cloak of immunity (Scheb & Scheb, 2008).  

There is also Use and Transactional Immunity at the Federal court level. The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as provided by 18 U,S,C, 6002, from use of the compelled testimony and evidence derived therefrom in subsequent criminal proceedings, as such immunity from use and derivative use is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege. Transactional immunity would afford broader protection than the Fifth Amendment privilege, and is not constitutionally required.  

In both the state and federal systems the prosecution must meet a burden that does not include using the information from the immunity to bring a case against the witnesses who testified with the granted immunity. Therefore in any subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony.

A witness given use immunity may not be forced to testify and may assert the privilege against self-incrimination People v Kramer, 123 AD2d 786 (2d Dept 1986). 

Witness Invoking Self-incrimination Right at Trial

In Kastigar v. United States 406 US 441 (1972) the Court addressed the issues as to whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom ('use and derivative use' immunity), or whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates ('transactional' immunity'). In Kastigar v. United States (1972) the Court affirmed and advised that the decision made by the lower court were correct that the proper form of immunity in such cases is "use and derivative use" immunity.

"The statute's explicit proscription of the use in any criminal case of 'testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)' is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege" Kastigar v United States (p. 453 1972). The Court here felt that Transactional Immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege" Kastigar v. United States (p. 453 1972).

The Court also advised that "There can be no justification in reason or policy for holding that the Constitution requires an amnesty grant where, acting pursuant to statute and accompanying safeguards, testimony is compelled in exchange for immunity from use and derivative use when no such amnesty is required where the government, acting without colorable right, coerces a defendant into incriminating himself" Kastigar v. United States (p. (462 1972). In this case the petitioner wanted the court to grand transactional (full) immunity. In the case of the Officer Porter it appears that this would be the most proper avenue to take since he is not just a witness in this case but a co-defendant. 

Baltimore Police Officer Porter Invoking Fifth Amendment Right to Not Testify as Witness Against Co-Defendant

The issue in the instant case in Baltimore is that the witness being compelled here is already on trial for participating in the same transaction and occurrence and places a different twist on this issue at hand. The Court’s reasoning is that in any usual case when a witness is called they can take the Fifth Amendment and then be provided with use immunity. However, here with Officer Porter, he is not just a witness he is also a defendant in the same case.

Prior to the United States Supreme Court’s decision  in the Kastigar v. United States (1972)the guiding legal precedent was the case of Counselman v. Hitchcock  142 U.S. 547 (1892), which provided for full "transactional" immunity in cases of compelled statements which is similar to the issue which is being addressed in the Baltimore Police Officers case involving Officer Porter.  As was previously stated when dealing with "Transactional" immunity this means that the individual who is testifying has full protection from prosecution for the offense under investigation.   The situation changed with the Court’s decision in Kastigar, in which the Supreme Court overturned Counselman, and they then held that immunity for compelled statements only applies to the use of the statements themselves, and to any evidence gained as a result of the protected statements.  

This is known as "use and derivative use" immunity, in which "use" is the use of the protected statements, and "derivative use" pertains to any evidence gained as a result of the protected statements.  It is also known as "use plus fruits" immunity. This means that the person in question can still be prosecuted for the offense under investigation, as long as the prosecution relies solely on evidence other than the protected statements and their fruits. However, information from the statements and information presented during the testimony can be the guiding light use to uncover and discover the proof needed to further investigate and charge the witness as a defendant.

In the Baltimore’s Officer Porter’s case he is already a defendant in the same transactions and occurrence he is being compelled to testify in with use immunity. In addition, he was already tried which resulted in a mistrial and the prosecution is could obtain information from his testifying that they would not have been privy to due to him invoking his Fifth Amendment Right to remain silent and through the use of the use immunity the prosecution can circumvent this right which is one of the bedrocks of our Due Process.

The result is that in many cases, what is known as a "Kastigar Hearing" takes place, in which the prosecution must prove that its case rests solely on evidence other than the protected statements and their fruits. This was of more recent significance in regard to the Nisour Square incident of September 16, 2007.  On that day, Blackwater military contractors in Iraq killed 17 civilians in Baghdad's Nisour Square.  In December 2008 the United States Department of Justice brought criminal charges against five of the contractors who'd been involved, but the charges were dismissed in late 2009 because the prosecution had utilized evidence that was gained as a result of compelled statements by the employees.

This is a real challenge to the rationale involving use and transactional immunity in relation to the Fifth Amendment to the United States Constitution. No matter which immunity is offered or used involving Officer Porter the information provided from his testimony, after invoking his Fifth Amendment Right first as a subject and then as a defendant, along with his mandate to give a statement under Garrity, provided and will provide for a second time a chance at information that should not be legally accessible under  our Due Process System when the Fifth Amendment is invoked by a defendant and if it does it will open a very large hole in the protection of the Fifth Amendment for anyone else finding themselves in this position.

                                                               References

18 U.S.C. § 6002.

Counselman v. Hitchcock, 142 U.S. 547 (1892).

Kastigar v. United States, 406 US 441 (1972).

Garrity v. New Jersey, 385 U.S. 493 (1967).

Scheb, J.M. and, Scheb, J.M., (2008) Criminal Law and Procedure 7^th ed. Belmont, CA: Cengage Publishing.