Separation of Powers Shell Game: The Federal Witness Immunity Act

This article examines the 1970 Immunity Act, which was intended to be, and has been a law enforcement tool. Prosecutors have virtually unchecked discretion to grant or deny use and derivative use immunity to a witness in a criminal prosecution. Potential prosecution witnesses with Fifth Amendment rights are forced to testify through a governmental grant of immunity rubber stamped by the judiciary. At the same time, the defense is denied the ability to compel testimony from important potential defense witnesses with Fifth amendment rights because the prosecutor very rarely finds such testimony to be in the “public interest” under the Act, and even more rarely do courts find a basis for ordering immunity.The article concludes that this one-sided statutory framework is unconstitutional when applied to deny the defense material, favorable testimony. Not only does the statute violate a defendant’s rights, it also violates separation of powers. Congress has no authority to delegate a judicial function, determining cases and controversies fairly, to an interested party, the government. The Act uniquely gives a party exclusive control over an important trial issue concerning the admissibility of evidence.