I have a question for a novel I am writing.

[harmonica]

New York

I am writing a fictional book and have a question about how the law works, if that's okay. If a witness is subpeonaed to testify against a defendant in criminal court, but the witness uses the 5th amendment as a defense not to testify because she will be incriminating herself by doing so, I am told that the prosecutor gives immunity in these situations. However, does the witness have to accept immunity, or is it her choice not to and remain completely silent if she wishes?

 

[quincy]

New York

I am writing a fictional book and have a question about how the law works, if that's okay. If a witness is subpeonaed to testify against a defendant in criminal court, but the witness uses the 5th amendment as a defense not to testify because she will be incriminating herself by doing so, I am told that the prosecutor gives immunity in these situations. However, does the witness have to accept immunity, or is it her choice not to and remain completely silent if she wishes?

No one can be forced to speak, whether offered immunity or not.

Generally witnesses will not be called to testify unless it is known in advance what they will say (or, in your fictional situation, what they will not say).

Because this forum is designed to help people with their real legal issues, the members tend not to entertain hypotheticals, help students with their homework, or assist with the writing of novels.

 

[Proserpina]

No one can be forced to speak, whether offered immunity or not.

Generally witnesses will not be called to testify unless it is known in advance what they will say (or, in your fictional situation, what they will not say).

Because this forum is designed to help people with their real legal issues, the members tend not to entertain hypotheticals, help students with their homework, or assist with the writing of novels.

But at least harmonica was upfront about it. I appreciate that. Lots.

 

[CavemanLawyer]

A witness cannot refuse immunity to avoid testifying. If the State officially gives immunity then that witness' 5th Amendment right not to incriminate themself is preserved and satisfied because nothing they say can be used against them criminally (or they outright can't be charged with the applicable crime... depending on which type of immunity is given.) If a witness is granted immunity and still refuses to testify then they can be held in contempt and incarcerated either for a designated period of time or until they are willing to testify. Trials have been recessed and juries sent home while the witness sits in jail waiting until they are willing to cooperate. It all depends on what the Judge is willing to do.

When I was a prosecutor I had this situation come up very frequently. Sometimes the issue would come up mid trial out of the blue.

There are two types of immunity that can be granted. Transactional immunity means that the person is outright given immunity from ever being charged with whatever crime their testimony might involve. The other form is called "use" or derivative immunity meaning that the person can still be charged their testimony just cannot be admitted in their trial if they are later charged.

 

[quincy]

... If a witness is granted immunity and still refuses to testify then they can be held in contempt and incarcerated either for a designated period of time or until they are willing to testify ...

That, of course, is one of the downsides of refusing to speak.


Proserpina, I agree that it was refreshing for harmonica to start off his post by saying he is a writer. It reminded me of an old thread where we didn't learn the poster was a writer working on a novel until the end of page 2 of his 4 page thread - and it was 4 pages only because by page 2 the thread had taken on a life of its own. Here is a link, just because I found it and because it temporarily brings back to the forum seniorjudge and Shay and tranquility: https://forum.freeadvice.com/other-crimes-federal-state-4/choice-murder-412679.html

 

[cbg]

Personally, as long as the person is up front about what and why they are asking, I have no problem with answering questions for authors. Since I am one myself, I know that they usually have a specific situation in mind with definite parameters and are not just asking random idiocies. I still see this as being within the purpose of the board.