• If the court determines that the witness, based upon his privilege against self-incrimination, may properly refuse to answer a question or produce an item, the prosecuting attorney may make a written request that the court grant use immunity to the witness, in accordance with section 3 of this chapter.
• (a) Upon request of the prosecuting attorney, the court shall grant use immunity to a witness. The court shall instruct the witness, by written order or in open court, that any evidence the witness gives, or evidence derived from that evidence, may not be used in any criminal proceeding against that witness, unless the evidence is volunteered by the witness or is not responsive to a question by the prosecuting attorney. The court shall instruct the witness that the witness must answer the questions asked and produce the items requested.
(b) A grant of use immunity does not prohibit the use of evidence the witness has given in a prosecution for perjury under IC 35-44.1-2-1.
(c) If a witness refuses to give the evidence after the witness has been granted use immunity, the court may find the witness in contempt.
• “Three types of immunity may be granted [to] a witness in exchange for her testimony. Transactional immunity prohibits the State from criminally prosecuting the witness for any transaction concerning that to which the witness testifies. Use immunity prohibits use at a subsequent criminal proceeding of testimony compelled of the witness. Derivative use immunity prohibits admission against a witness in a subsequent criminal prosecution of evidence obtained as a result of the witness’s compelled testimony.”
• The witness' right against self-incrimination is not violated where the grant of immunity leaves the witness in substantially the same position as if the privilege to remain silent had been properly exercised. Use immunity will not protect a witness who testifies untruthfully at trial. However, where a witness is compelled to testify and does so truthfully, the prosecution may not use the compelled testimony to support a prosecution for perjury antedating the immunity order.
• Use immunity and derivative use immunity, granted in conjunction, leave a witness in substantially the same position as if the witness had claimed the privilege.
When the state subsequently prosecutes a previously immunized witness
• [A] constitutional violation occurs when the state uses the compelled testimony against the witness.
• [O]nce the government initiates prosecution against the immunized witness, a pretrial hearing is the proper manner for challenging the State's compliance with the immunity grant.
Scope of immunity
• The State is not required to grant transactional immunity. Use and Derivative Use immunity is sufficient.
• Transactional immunity prohibits the State from criminally prosecuting the witness for any transaction concerning that to which the witness testifies.
• Use immunity prohibits use at a subsequent criminal proceeding of testimony compelled of the witness.
Derivative use immunity prohibits admission against a witness in a subsequent criminal prosecution of evidence obtained as a result of the witness's compelled testimony.
Validity of an immunity agreement
• Both the United States Supreme Court and this Court have held that use and derivative use immunity statutes are not unconstitutional infringements of the Fifth Amendment privilege against self-incrimination.
• Use immunity is a procedural tool utilized by prosecutors to encourage or force reluctant witnesses to testify. Under Ind.Code § 35–37–3–3 (1988), only the prosecutor may request immunity for witnesses in criminal prosecutions and only the trial court may grant such immunity.
• [Generally, there are] three factors in determining whether to enforce an immunity agreement with the State: (1) the involvement of the prosecutor; (2) at least nominal approval by the court; and (3) some detriment to the defendant by the State's failure to abide by its bargain.
• An immunity statute will be upheld where the immunity granted is coextensive with the scope of the privilege.
• Having granted unlimited immunity to a particular witness, the State may not, without demonstrating good cause, later retract the immunity.
• [Witness' prior invocation of Fifth Amendment right against self-incrimination and refusal to testify at deposition hearing being taken on behalf of defendant was sufficient to give prosecutor reason to believe that witness would again refuse to testify as witness at defendant's trial, thus warranting prosecutor's petition for use immunity for witness.]
Witness refuses to testify, makes false statements, or withholds evidence
• [Where witness was granted immunity and ordered to testify, but refused]. . . . The willful and intentional disobedience of the orders of a court can constitute indirect criminal contempt. . . the trial court did not err in finding Chanley guilty of criminal contempt.
• [Immunity agreement will not be enforced when the Witness does not abide by its terms] the Defendant is not entitled to enforcement of the agreement on equity grounds because she violated its terms. Although she agreed to cooperate with the police investigation, she withheld information and later admitted that she “wasn't telling the truth” in some of her statements.
NOTE: though the Prosecutor has the authority to request use immunity, and the court must grant that request, the court does NOT have the same obligation to grant a Defendant’s request for immunity for a Defense witness.
• The trial court's refusal to compel state to grant use immunity to defendant's drug supplier, an unnamed individual who allegedly would have testified as to type of drug defendant was allegedly taking on night of murder, did not deny defendant due process. The defendant failed to show that his drug supplier refused to testify because of threats made by prosecutor, defendant did not make a showing that supplier would have refused to testify without immunity, and he failed to show that supplier's testimony would have been exculpatory or led to exculpatory evidence.
• It is clearly no violation of the fourteenth amendment equal protection clause to refuse immunity to defense witnesses. . . [but] the State must only refrain from interference with the defense's presentation of its case.
• [T]he evidentiary showing required to justify reversal on that ground must be a substantial one. The defendant must be prepared to show that the government's decisions were made with the deliberate intention of distorting the judicial fact finding process. Where such a showing is made, the court has inherent remedial power to require that the distortion be redressed by requiring a grant of use immunity to defense witnesses as an alternative to dismissal.