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Some courts have recognized the defendant’s right to compulsory testimony under a grant of immunity within certain limited circumstances, where:

  • the witness’ testimony is essential to an effective defense,
  • the witness is available to testify,
  • the testimony sought is “clearly exculpatory”, and
  • there is no showing of “strong governmental interests” against the immunity grant,


Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir. 1980); US v. DePalma, 476 F.Supp 775 (S.D.N.Y. 1979). See also Herman v. US, 589 F.2d 1191 (3rd Cir. 1978), cert. denied, 441 US 913 (1979); US v. Lord, 711 F.2d 887 (9th Cir. 1983). Cf: US v. Bazzano, 712 F.2d 826 (3rd Cir. 1983) en banc [it is within trial court’s discretion to deny defense witness immunity at probation revocation hearing].


See also US v. Salerno, 505 U.S. 317, 324, 112, S.Ct. 2503, 25086 (1992) where two witnesses testified favorably to the defendant before the grand jury. The government did not believe their testimony and attempted to impeach them before the grand jury. Thereafter, the defense attempted to call them to testify at trial. But they invoked their Fifth Amendment rights not to incriminate themselves. Since trial counsel was unable to obtain defense witness immunity for the two witnesses, he removed the admission of their grand jury testimony. The US Supreme Court remanded the case for a determination whether the government had a similar motive in developing their testimony before the grand jury as it have had at trial. If the government did have a similar motive, the witness grand jury testimony would be admissible at trial.


Also cf: US v. Yates, 524 F.2d 1282, 1283 (D.C. Cir. 1975) [the government’s obligation to assure the defendant’s right to confrontation by a grant of use immunity to witness’ whose hearsay statements are offered after they invoke their Fifth Amendment privilege]; Simmons v. US, 390 US 377 (1968) [in effect immunizes defendant’s testimony at suppression hearing allowing the accused to testify at his pretrial suppression hearing to invoke his Fourth Amendment right to be free from admissibility of such testimony at his trial]. Contra: US v. Gleason, 616 F.2d 2 (2nd Cir. 1979), cert. denied, 444 US 1083 (1980); US v. Lenz, 616 F.2d 960

(6th Cir.), cert. denied, 447 US 929 (1980); US v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977);

US v. Heldt, 668 F.2d 1238 (9th Cir. 1981) cert. denied, 456 US 926 (1982). It would appear same is still an open question in the Fifth Circuit; US v. Beasley, 550 F.2d 261, 268 (5th Cir.) cert. denied 434 US 938 (1977); US v. D’Apice, 664 F.2d 75 (5th Cir. 1981). See also US v. Pennell, 737 F.2d 521 (6th Cir. 1984) en banc, [no inherent power to grant immunity to witness who asserts Fifth Amendment privilege, either under §6002 or Sixth Amendment, leaving open question of circumstances where prosecutorial misconduct in refusing to grant immunity is demonstrated] cert. denied 469 U.S. 1158 (1985).

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