Immunity is a trade in pursuit of the truth Grant can be used to force testimony that incriminates witness

July 29, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- A grant of immunity is the price a criminal prosecutor must pay in order to force individuals to testify about what they might have done illegally, and the kind of promise Monica Lewinsky got yesterday is the closest thing there is to total immunity.

Immunity, in the American legal system, is paired with the Fifth Amendment right not to be compelled to admit a crime -- the right against "self-incrimination."

Without immunity, testimony that would be an admission of crime cannot be coerced without violating the Fifth Amendment.

Both ideas -- immunity from prosecution, and the right not to be forced to give evidence against one's self -- are deeply embedded in the legal tradition from which American law is drawn, going back well into English history.

Only the right against self-incrimination is spelled out specifically in the Constitution, but the Supreme Court has said repeatedly -- as recently as last month -- the constitutional right cannot be overcome without immunity.

Still, there are variations in immunity promises, with different levels of protection for the witness.

Independent counsel Kenneth W. Starr could have tried to induce Lewinsky to be a witness before the grand jury by offering less protection than he did.

Instead, what Starr promised to Lewinsky, according to her lawyers, is "transactional immunity" -- the most protection he could offer.

Starr also agreed to give the same amount of protection to her mother, Marcia Lewis.

Lewinsky's lawyers "did a good job for her: they got her the broadest possible immunity," said Gary P. Naftalis, a former federal prosecutor who is a criminal defense lawyer in New York City.

"In my view, if Starr wants to bring this aspect of this investigation to a close, he really needs Lewinsky's full and complete truthful testimony; that is very important to him, no matter how much work he's done," Naftalis added.

And the way Starr can assure that, the ex-prosecutor said, is with the kind of immunity he extended.

Two degrees of immunity

According to Naftalis and other legal experts, the two most common forms of immunity in federal cases are "transactional immunity" and "use immunity."

Use immunity -- the kind that a prosecutor obtains from a court order to compel witness testimony -- is considerably narrower.

"That says that nothing you say, or no leads derived from that, can be used against you," Naftalis said.

"Your words, leads and clues from them, can't be used."

Transactional immunity -- the kind that a prosecutor can offer without getting a court's approval -- does not provide protection only for the words or leads they produce.

It covers any action or transaction that the witness has discussed in any way -- even if the prosecutor has independent evidence of that crime.

Under either form of immunity, a witness can be prosecuted for perjury if it turns out that the testimony under oath was false.

One advantage to the broader form of immunity, according to NTC Naftalis, is that the prosecutor can take back the promise if the witness appears not to be telling the truth, thus making the witness subject to prosecution not only for perjury but also for crimes involved in any transaction discussed.

Use immunity, once granted by a court, can't be taken back.

Naftalis said it is common for prosecutors to write into the immunity letter the threat of pulling back the immunity if the witness does not testify truthfully, but he said he did not know whether Starr had done so in his deal with Lewinsky's lawyers.

That threat, the former prosecutor said, makes transactional immunity "more efficacious. The prosecutor may get a fuller story."

Bargains and assurances

Immunity deals are usually the result -- as they were with Lewinsky -- of bargaining between prosecutors and defense lawyers.

Prosecutors will want assurances that they are going to get access to everything the witness knows, and defense lawyers will want their client to get the fullest possible shield against prosecution.

Before a 1972 Supreme Court decision, only a promise of transactional immunity could allow prosecutors to force a witness to give evidence of a crime.

But a ruling that year declared that a witness need only be given use immunity in exchange for the testimony.

Pub Date: 7/29/98

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