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Some courts have recognized the defendant’s right to compulsory testimony under a grant of immunity under 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,

U.S. v. Morrison, 535 F.2d 223 (3d Cir. 1966);

U.S. v. DePalma, 476 F. Supp. 775 (S.D.N.Y. 1979).

See also           Herman v. U.S., 589 F.2d 1191 (3d Cir. 1978), cert. denied, 441 U.S. 913 (1979);

U.S. v. Straub, 538 F.3d 1147 (9th Cir. 2008) (defendant need not demonstrate that the government denied the witness immunity with the intention of distorting the fact-finding process)

Cf.                   U.S. v. Yates, 524 F.2d 1282, 1286 (D.C. Cir. 1975) [the government’s obligation to assure the defendant’s right to confrontation a grant of use immunity to witness’ whose hearsay statements are offered after they invoke their Fifth Amendment privilege];

Simmons v. U.S., 390 U.S. 377 (1968) (immunizing defendant’s testimony at suppression hearing).

Contra             U.S. v. Gleason, 616 F.2d 21, 28 (2d Cir.), cert. denied, 444 U.S. 1083 (1980);

U.S. v. Lenz, 616 F.2d 960 (6th Cir.), cert. denied, 447 U.S. 929 (1980);

U.S. v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977);

U.S. v. Heldt, 668 F.2d 1238 (9th Cir. 1981).

It would appear same is still an open question in the Fifth Circuit.

See                  U.S. v. Herbst, 641 F.2d 1161, 1168-9 (5th Cir. 1981);

U.S. v. Beasley, 550 F.2d 261, 268 (5th Cir. 1977);

U.S. v. D’Apice, 664 F.2d 75 (5th Cir. 1981).

Under certain circumstances a defendant is entitled to a severance in order to provide necessary testimony of his co-defendant.

See                  U.S. v. Grapp, 653 F.2d 189 (5th Cir. 1981);

U.S. v. Butler, 611 F.2d 1066, 1071 (5th Cir.), cert. denied, 101 S.Ct. 97 (1981).

See also          U.S. v. Martinez, 486 F.2d 15 (5th Cir. 1973);

Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970);

U.S. v. Shuford, 454 F.2d 772 (4th Cir. 1971);

U.S. v. Gleason, 159 F. Supp. 282 (S.D. N.Y. 1966).

The Fifth Circuit has recently set out the criteria for demonstrating such a need for such severance as would qualify under FED. R. CRIM. P. Rule 14 “compelling prejudice” standard:

“One seeking a severance on the grounds that he needs the testimony of a co-defendant must demonstrate:

  • a bona fide need for the testimony;
  • the substance of the testimony;
  • its exculpatory nature and effect; and
  • that the co-defendant will in fact testify if the cases are “

U.S. v. Grapp, 653 F.2d at 193.

It has been held that as between the two, a witness’ Fifth Amendment right to remain silent takes precedence over defendant’s Sixth Amendment right to compel his testimony.

U.S. v. Goodwin, 625 F.2d 693 (5th Cir. 1980). However, a defendant who is able to present a strong exculpatory evidence that another person committed the offense the defendant is charged with, the defendant may be entitled to have the court compel the witness to take the stand to invoke the Fifth Amendment in front of the jury. State v. Whitt, 649 S.E.2d 258 (W.Va. 2007). This is an exception to the general rule against calling a witness to the stand solely for the purposes of invoking the privilege.

It is also worth mentioning that the Supreme Court has recently held that the state cannot restrict efforts by defendants in death penalty cases to blame a third party by requiring the court evaluate the strength of the prosecution and defense evidence. Holmes v. South Carolina, 547 U.S. 319 (2006).

Where a witness seeks to be excused from testifying on the basis that his testimony will violate his Fifth Amendment privilege against self-incrimination, the Fifth Circuit has developed the practice whereby, outside the presence of the jury, the trial judge examines the witness to determine whether reasonable grounds exist to uphold the privilege. U.S. v. Goodwin, 608 F.2d 147 (5th Cir. 1980).

It is the assertion of the privilege coupled with the court’s in camera determination that will exonerate a witness from testifying. U.S. v. Sheikh, 654 F.2d at 1072.

To sustain the privilege and excuse a witness from testifying the court must find that the claimant, “is confronted by substantial and real …hazards of incrimination”. U.S. v. Apfelbaum, 445 U.S. 115 (1980). Where the witness answers “might be used against him in any subsequent criminal proceeding, invocation of the Fifth Amendment privilege would justify excusing the testimony. In re Corregated Container Antitrust Litigation, 644 F.2d 70 (5th Cir. 1981).

As the Supreme Court noted in Hoffman v. U.S., 341 U.S. 479 (1951), “to sustain the privilege, it need only be evident from the implications of the question …that a responsive answer…might be dangerous because injurious disclosure could result”. See also U.S. v. McCloskey, 682 F.2d 468 (4th Cir. 1982) [for hearsay exception purposes a witness must properly claim a Fifth Amendment privilege and such claim must be sustained by the Court before such witness is considered unavailable].

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