Defense Witnesses Need Immunity Too:

Why the Supreme Court Should Adopt

the Ninth Circuits Approach to
Defense-Witness Immunity

ALISON M. FIELD*

ABSTRACT
[W]here two eyewitnesses tell conflicting stories, and only the witness
testifying for the government is granted immunity, the defendant would be
denied any semblance of a fair trial. With all the money, power, and
witnesses at its disposal, it is hard to see how the government ever loses a
case. In order to reconcile the power imbalance between the government
and the defendant, as well as to protect the defendants constitutional
rights, Congress has developed the use-immunity statute, 18 U.S.C. 6002.
Still, in criminal cases, U.S. courts are reluctant to grant immunity to
defense witnesses. Prosecutors also have the power to provide immunity to
defense witnesses, but not surprisingly, they rarely ever exercise that
power. Thus, defendants are prevented from presenting a complete defense
when a possible witnesswith exculpatory evidence or statements that
could impeach the prosecutions witnessis unavailable (primarily due to
asserting the Fifth Amendment privilege).

** Candidate for Juris Doctor, New England Law | Boston (2015). B.A.,
Psychology, Indiana University (2012). I would like to thank the New
England Law Review staff for their hard work, my friends and family for
encouraging me, and, finally, DMF for providing me with the inspiration
for the article.
1

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This Note argues that courts should have broad discretion in providing defense-witness immunity.
Accordingly, the Supreme Court, which has not ruled on the issue of defense-witness immunity, should
adopt the Ninth Circuits approach. The Ninth Circuit approach considers: (1) whether the testimony is
relevant; and (2) whether the prosecutor caused the defense witness to invoke his Fifth Amendment
privilege, or denied immunity to a defense witness whose testimony would contradict that of a government
witness who was granted immunity.

INTRODUCTION

icture this scenario: you are charged with committing a crime and the government puts a witness
on the stand who provides essential testimony against you. 1 Your attorney attempts to present a
witness who can testify on your behalf and rebut the government witnesss testimony, but your
witness refuses to testify.2 Your witness is afraid that testifying for you will implicate him in the
crimes that you are charged with, and he is unwilling to cooperate. 3 As a result the jury hears only one side
of the storythe governments.4
[W]here two eyewitnesses tell conflicting stories, and only the witness testifying for the government is
granted immunity, the defendant would be denied any semblance of a fair trial. 5 With all the money,
power, and witnesses at its disposal, it is hard to see how the government ever loses a case. 6 In order to
reconcile the power imbalance between the government and the defendant, as well as to protect the
defendants constitutional rights, Congress developed the use-immunity statute, 18 U.S.C. 6002. 7 Still, in
criminal cases, courts across the United States are reluctant to grant immunity to defense witnesses. 8
Prosecutors also have the power to provide immunity to defense witnesses, but not surprisingly, they rarely
ever exercise that power.9 Thus, defendants are prevented from presenting a complete defense when a
possible witnesswith exculpatory evidence or statements that could impeach the prosecutions witnessis
unavailable.10
This Note argues that courts should have broader discretion in providing defense-witness immunity.
Accordingly, the Supreme Court, which has not ruled on the issue of defense-witness immunity, should
adopt the Ninth Circuits approach. The Ninth Circuit approach considers: (1) whether the testimony is
relevant, and (2) whether the prosecutor caused the defense witness to invoke the Fifth Amendment
privilege or denied immunity to a defense witness whose testimony would contradict that of the government
witness who was granted immunity.11
Part I addresses the importance of defense-witness immunity statutes and the proponents arguments for
1See United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991) (discussing the scenario where a
defendant witness is not granted immunity, even though the witnesss testimony directly conflicts with the
immunized-government witnesss testimony).
2See id. at 108586.
3See id.
4See id. at 1087.
5Id. (quoting United States v. Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984)).
6See Hon. H. Lloyd King, Jr., Why Prosecutors are Permitted to Offer Witness Inducements: A Matter of
Constitutional Authority, 29 STETSON L. REV. 155, 175 (1999) (examining the lack of power defense counsel
possess in relation to the power afforded to government attorneys).
7See 18 U.S.C. 6002 (2012).
8See Nathaniel Lipanovich, Resolving the Circuit Split on Defense Witness Immunity: How the Prosecutorial
Misconduct Test Has Failed Defendants and What the Supreme Court Should Do About It, 91 TEX. L. REV. 175, 178
(2012).
9See JULIE R. OSULLIVAN, FEDERAL WHITE COLLAR CRIME: CASES AND MATERIALS 87478 (4th ed. 2009).
10Unavailability is most often due to a witness asserting the Fifth Amendment privilege. See United States v.
Straub, 538 F.3d 1147, 115658 (9th Cir. 2008) (leaving the defendant with no choice but to accept the trial
courts decision not to grant use immunity).
11Id. at 1162.

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advancing these statutes. Part II introduces the three different approaches the circuit courts have taken
regarding a trial courts ability to grant defense-witness immunity. Part III analyzes and discounts the Third
Circuit approach to defense-witness immunity. Part IV discusses and rejects the Second Circuit defensewitness immunity approach. Part V argues that the Supreme Court should adopt the Ninth Circuit defensewitness immunity approach. This Note concludes that the Supreme Court should adopt the Ninth Circuit
approach to defense-witness immunity because it is more lenient, 12 focuses on the effect of the prosecutors
actions,13 and balances grants of immunity for prosecutors and defendants.14

12Compare id. (broadening the prosecutorial misconduct definition to include conduct that has the effect of
distorting the fact-finding process), with United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (limiting the
prosecutorial misconduct definition only to conduct that deliberately distorts the fact-finding process).
13Compare Straub, 538 F.3d at 1162 (holding that prosecutorial misconduct can be proven with actions that
have the effect of distorting the fact-finding process), with Ebbers, 458 F.3d at 119 (requiring that prosecutorial
misconduct be shown by deliberate actions that distort the fact-finding process).
14See Straub, 538 F.3d at 115657 (allowing courts to grant immunity for defense witnesses, instead of making
the immunity grants dependent on the prosecutors decisions).

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I.Background
A. The Importance of the Unsettled Area of Defense-Witness Immunity Statutes
In 1956, the Supreme Court recognized the importance of immunity statutes and declared that statutes
granting immunity ha[ve] become part of our constitutional fabric. 15 Every state has enacted a useimmunity statute, and Congress has passed over forty immunity statutes on the federal level. 16 The useimmunity statute, 18 U.S.C. 6002,17 provides federal prosecutors with the ability to grant witnesses
immunity, but does not grant defendants equivalent power.18 Thus, courts have attempted to resolve this
inequity in two ways, by either: (1) directly granting witnesses immunity; 19 or (2) threatening to dismiss the
prosecutions case if it does not provide immunity for defense witnesses. 20 As state and federal courts
attempt to reconcile this unsettled area of law, the division in approaches has only increased. 21 However, the
Supreme Court has yet to decide when a defendant is entitled to obtain immunity for witnesses. 22
B.Arguments in Favor of Obtaining Immunity for Defense Witnesses
While obtaining immunity for defense witnesses remains an unsettled area of law, proponents continue
to advance a multitude of arguments in favor of granting defense-witness immunity. 23 These arguments
center on two premisesdefense-witness immunity is needed to: (1) balance the power between the
prosecution and the defense to ensure a fair and just trial; 24 and (2) protect the defendants constitutional
rights.25
1.

Balancing Power to Ensure a Fair and Just Trial

The first argument in support of defense-witness immunity emphasizes that leveling the playing field,

15Ullmann v. United States, 350 U.S. 422, 438 (1956).

16Murphy v. Waterfront Commn, 378 U.S. 52, 94 (1964) (White, J., concurring), overruled in part on other
grounds by United States v. Balsys, 524 U.S. 666 (1998).
1718 U.S.C. 6002 (2012) (providing that an immune witnesss testimony will not be used against the witness
in a future prosecution).
18See id.
19See Govt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980) (explaining that the effective defense theory
requires defense-witness immunity when it is found that a potential defense witness can offer testimony
which is clearly exculpatory and essential to the defense case and when the government has no strong
interest in withholding use immunity). However, only the Third Circuit has taken this approach. See 33A
FEDERAL PROCEDURE: LAWYERS EDITION 80:301 (2014) [hereinafter FEDERAL PROCEDURE].
20See, e.g., United States v. Burke, 425 F.3d 400, 411 (7th Cir. 2005) ([A] federal court cannot order the
government to immunize a defense witness, [but] courts can dismiss an indictment where the prosecutors
refusal to grant immunity has violated the defendants right to due process.) (citing United States v.
Herrera-Medina, 853 F.2d 564, 568 (7th Cir. 1988)).
21See United States v. Straub, 538 F.3d 1147, 1166 (9th Cir. 2008) (urging judgment of acquittal unless the
prosecution granted use immunity to the defense witness); State v. Belanger, 210 P.3d 783, 79293 (N.M.
2009) (creating a rule allowing district courts to grant use immunity with or without the prosecutors
agreement).
22The Supreme Court had the ability to resolve questions surrounding defense witness immunity, but
declined every opportunity to do so. See, e.g., Hunter v. California, 498 U.S. 887, 887 (1990) (Marshall, J.,
dissenting from denial of writ of certiorari); Autry v. McKaskle, 465 U.S. 1085, 1086 (1984) (Marshall, J.,
dissenting from denial of writ of certiorari).
23Lipanovich, supra note 8, at 185.
24Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (The right of an accused in a criminal trial to due
process is, in essence, the right to a fair opportunity to defend against the States accusations.).
25Lipanovich, supra note 8, at 185.

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between defendant and prosecutor, allows courts to provide a fair and just trial. 26 Defense-witness immunity
can uncover the truth and prevent the incarceration of innocent defendants. 27 The U.S. Attorney Manual is a
Department of Justice internal reference guide that provides the controlling policies and procedures for U.S.
Attorneys.28 This manual states, 18 U.S.C. 6002 will not be used to compel the production of testimony or
other information on behalf of a defendant except in extraordinary circumstances where the defendant
plainly would be deprived of a fair trial without such testimony or other information. 29 Ultimately, this gives
the government the final say and leaves defendants with very few options, which is especially troubling
given the adversarial nature of a criminal prosecution.30
Although compelled testimony often plays an important part in obtaining a successful result in criminal
prosecutions,31 courts frequently reject the idea that there is a power imbalance between prosecutors and
defendants.32 These courts, which include the Second and Third Circuits, note the affirmative obligations
(e.g., burden of proof) that prosecutors have, as well as the restrictions they face (e.g., the inability to
comment on a defendants choice not to testify).33 Effectively, a defendant could be acquitted at trial without
presenting any evidence at all, while the prosecution must convince the jury beyond a reasonable doubt of
defendants guilt.34 Despite the evidentiary standard and inability of the prosecution to compel the
defendants testimony, the Ninth Circuit has not dismissed the idea of inequality, and instead posed the
argument for defense-witness immunity as a mere hypothetical: [W]here two eyewitnesses tell conflicting
stories, and only the witness testifying for the government is granted immunity, the defendant would be
denied any semblance of a fair trial.35
2.

Protecting Constitutional Rights

The second argument in favor of granting defense-witness immunity focuses on protecting a defendants
constitutional rights.36 Typically, legal commentators rely upon constitutional arguments to advance their
ideas, and the area of defense-witness immunity is no exception. 37 The right to a fair trial is one of the most
26See id. at 18689.
27See Brady v. Maryland, 373 U.S. 83, 87 (1963) (stressing that societys interest in trials extends beyond
convicting the guilty).
28U.S. DEPT OF JUSTICE, UNITED STATES ATTORNEYS MANUAL 1-1.100 (1997), available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/.
29OSULLIVAN, supra note 9, at 877 n.4 (quoting id. at 9-23.214).
30Lipanovich, supra note 8, at 18889.
31See Kastigar v. United States, 406 U.S. 441, 44647 (1972) (noting that immunity statutes are essential to
the effective enforcement of various criminal statutes); Murphy v. Waterfront Commn, 378 U.S. 52, 94
95 (1964) (White, J., concurring) (calling compelled testimony one of the Governments primary sources of
information).
32See King, Jr., supra note 6, at 175 (examining the unilateral distribution of governmental powers to the
prosecutor and the corresponding lack of governmental powers afforded to defendants); see, e.g., United
States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980) (dismissing this type of argument as entirely
unpersuasive); see also United States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978) (Due process has never
yet been held to require that the defendant be permitted to marshal precisely the same investigative and legal
resources as the prosecution . . . .).
33Turkish, 623 F.2d at 774; see also Herman, 589 F.2d at 1203.
34Lipanovich, supra note 8, at 19091.
35United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991) (quoting United States v. Brutzman, 731 F.2d
1449, 1452 (9th Cir. 1984)).
36See U.S. CONST. amend. VI (providing that an accused has a constitutional right to have compulsory
process for obtaining witnesses in his favor); U.S. CONST. amend. V, XIV (referring to the due process clause
under both amendments, depending on whether the prosecutor represents the state or the federal
government).
37See, e.g., Howard J. Vogel, The Ordered Liberty of Substantive Due Process and the Future of Constitutional Law
as a Rhetorical Art: Variations on a Theme From Justice Cardozo in the United States Supreme Court, 70 ALB. L. REV.

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important notions underlying the American criminal justice system; one way a fair trial is achieved is
through granting defense-witness immunity.38 Further support for defense-witness immunity is found in
various parts of the Constitution, as well as Supreme Court precedent.39
The Sixth Amendment supports defense-witness immunity. 40 The Sixth Amendment states, the accused
shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor. 41 In Washington v.
Texas, the Supreme Court detailed the Sixth Amendments importance with respect to a defendants case and
stated:
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to present the defendants version of the facts as well as
the prosecutions to the jury so it may decide where the truth lies. 42

The Supreme Court went further and declared, [t]his right is a fundamental element of due process of
law.43
The Due Process Clauses of the Fifth and Fourteenth Amendments also support defense-witness
immunity.44 In Chambers v. Mississippi, the Supreme Court held that, [t]he right of an accused in a criminal
trial to due process is, in essence, the right to a fair opportunity to defend against the States accusations. 45
Accordingly, defendants argue that due process requires providing immunity to a defense witness to ensure
that the defendant is able to fully present a defense. 46 Without the immunity power, a defendants due
process rights may be violated because witnesses with relevant testimony may refuse to take the stand for
fear of future prosecution or may take the stand and assert the Fifth Amendment privilege. 47 In either
situation, the defendants due process rights are violated because the court and the jury will not hear the
relevantand sometimes exculpatorytestimony.48
II.The Circuit Split: How to Approach Defense-Witness Immunity
Although every circuit court has ruled on the issue of defense-witness immunity, the courts are split on
how specifically to deal with it.49 Three prominent approaches have surfaced: (1) the Third Circuits effective
defense theory; (2) the Second Circuits prosecutorial misconduct majority 50 approach; and (3) the Ninth
Circuits prosecutorial misconduct minority 51 approach.52 However, under any of these judicial approaches, it

1473, 154549 (2007) (discussing the formulation of constitutional arguments).

38Estelle v. Williams, 425 U.S. 501, 503 (1976) (concluding that the right to a fair trial is a fundamental
liberty); Lipanovich, supra note 8, at 18586 (arguing that defense-witness immunity is needed in order to
protect a defendants constitutional rights, including the right to a fair trial).
39See Lipanovich, supra note 8, at 18591 (referencing Supreme Court cases and constitutional amendments
that support granting defense-witness immunity).
40See U.S. CONST. amend. VI.
41Id.
42388 U.S. 14, 19 (1967).
43Id.
44See U.S. CONST. amend V, XIV.
45410 U.S. 284, 294 (1973) (finding a violation of due process where the court denied the defendants motion
to treat his own witness, the man who confessed to the crime the defendant was on trial for, as hostile).
46See United States v. Straub, 538 F.3d 1147, 1155 (9th Cir. 2008).
47See id. at 1156 (contemplating the problems with denying immunity to defense witnesses); Govt of V.I. v.
Smith, 615 F.2d 964, 967 (3d Cir. 1980) (providing an example where the prosecution failed to provide
immunity to the defense witness, who ultimately invoked the Fifth Amendment when he took the stand).
48See Straub, 538 F.3d at 1155; Smith, 615 F.2d at 967.
49See infra Part II.AC.
50This approach has been deemed the majority approach because ten of the twelve circuit courts have the
ability to grant immunity if the prosecutor is found to have abused discretion in granting immunity, making
this approach the most widely used amongst the circuits. Lipanovich, supra note 8, at 181.

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is very rare for a defendant to receive immunity for a key witness.53

A. The Third Circuits Effective Defense Theory

1.

Government of Virgin Island v. Smith

In Government of Virgin Island v. Smith, the Third Circuit adopted an approach to defense-witness
immunity called the effective defense theory. 54 In Smith, four defendants were on trial for robbing Roy
Phipps (Phipps).55 Three of the defendants moved to introduce testimony from Ernesto Sanchez
(Sanchez), who previously told the police that he, Scotto, Mon, and Mouth, were the men who
committed the crimes against Phipps. 56 One defendant, Elvis Smith (Elvis), was known as Scotto. 57
Therefore, Sanchezs statement would have exculpated the other three defendants, 58 but would have
incriminated Elvis.59
At trial, the defendants called Sanchez as a witness, hoping that his testimony would reveal his previous
statement to the police. 60 However, Sanchez was uncooperative and asserted the Fifth Amendment privilege
against self-incrimination.61 The defendants attempted to introduce the statement by declaring Sanchez an
unavailable witness under an exception to the hearsay rule. 62 The government argued that it would be unable
to cross-examine Sanchez under those circumstances. 63 The trial court agreed and did not admit Sanchezs
previous statement to the police.64
The defendants then requested a grant of immunity for Sanchez. 65 An authority in the Virgin Island
Attorney Generals office agreed to provide immunity for Sanchez as long as the U.S. Attorney consented. 66
For unknown reasons, this consent was never granted, and the potentially exculpatory evidence which
the defen[dants] desired to offer through Sanchez testimony[] was never presented to the jury. 67 All four
defendants were convicted for robbery; the three defendants who had sought to admit Sanchezs statement
appealed on the grounds that their due process rights were violated by failure to grant immunity to
Sanchez.68
51The Ninth Circuits prosecutorial misconduct approach is the minority one since most of the circuit courts
use the Second Circuits approach. Id.
52See infra Parts IIIV.
53See, e.g., United States v. Davidson, No. H-10-201-3S, 2010 WL 3521726, at *4 (S.D. Tex. Sept. 8,
2010) (rejecting the defendants request for witness immunity when the court was unable to locate a
decision within the Fifth Circuit where a court found that the government used its immunity privilege to
unfairly skew the fact-finding process or where due process or other extraordinary circumstances required
the court to grant use immunity to a defense witness.).
54See 615 F.2d 964, 96974 (3d Cir. 1980) (formulating the effective defense theory of defense-witness
immunity).
55Id. at 966.
56Id. at 96667. The nicknames used by Sanchez for the other perpetrators of the crime were not nicknames
for three of the defendants. Id.
57Id.
58Collectively these three defendants will be referred to as the defendants, whereas the fourth defendant,
Elvis Smith, will be referred to as Elvis.
59Smith, 615 F.2d at 967.
60Id.
61Id.
62Id.
63Id.
64Id.
65Smith, 615 F.2d at 967.
66Id.
67Id.
68Id.

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The Smith court acknowledged that withholding exculpatory facts from the jury violates a defendants
due process rights.69 The Third Circuit understood that a courts power to grant judicial immunity must be
limited.70 Therefore, the court presented five conditions that must be met before a court may grant immunity:
(1) immunity must be properly sought in the district court; [(2)] the defense witness must be available to
testify; [(3)] the proffered testimony must be clearly exculpatory; [(4)] the testimony must be essential; and
[(5)] there must be no strong governmental interests which countervail against a grant of immunity. 71
The Third Circuits approach relies heavily on the third and fourth requirements that the witness
testimony must be clearly exculpatory and essential. 72 The Third Circuit emphasized that a defense
witness will be denied immunity if the proffered testimony is found to be ambiguous, not clearly
exculpatory, cumulative or if it is found to relate only to the credibility of the governments witnesses. 73
Ultimately, the Third Circuit was attempting to create a new remedy to protect an established righta
defendants right to present an effective defense. 74 The court acknowledged that the common remedy of
granting a new trial would be ineffective in the Smith case because the defendants still would not be able to
present the exculpatory evidence.75 Thus, the effective defense theory was born.76
B. The Second Circuits Prosecutorial Misconduct Majority Approach
The Second Circuits approach focuses on prosecutorial misconduct. 77 Not surprisingly, every circuit
court allows at least the limited availability of defense witness immunity if prosecutorial misconduct can be
shown.78
1.

United States v. Ebbers

Ebbers was the Chief Executive Officer of the publicly traded company, WorldCom, Inc. (WorldCom). 79
Between the end of 2000 and the beginning of 2002, Ebbers concealed WorldComs decline in performance by
fabricating the companys financial records.80 At trial, Ebbers was convicted of conspiracy, securities fraud,
and related crimes and sentenced to twenty-five years in prison. 81 On appeal, he argued that the district
court erred in permitting the government to introduce testimony by immunized witnesses while denying
immunity to potential defense witnesses who were rendered unavailable to Ebbers by their invocation of the
privilege against self-incrimination.82 Ebbers further argued, he was denied a fair trial because the
government granted immunity only to witnesses whose testimony incriminated him and not to witnesses
whose testimony would exculpate him but who would have invoked the privilege against self-incrimination
if called to testify.83
69Id. at 970.
70Id. at 972.
71Smith, 615 F.2d at 972 (drawing on both the Chambers and Herman decisions). See Chambers v. Mississippi,
410 U.S. 284, 297, 302 (1973); United States v. Herman, 589 F.2d 1191, 1204, 1207, 1213 (3d Cir. 1978).
72Smith, 615 F.2d at 972.
73Id.
74Id. at 971.
75Id.
76See id. at 972.
77See infra Part II.B (referring to the Second Circuit, or prosecutorial misconduct majority approach).
78Lipanovich, supra note 8, at 181. Most circuits require that in order to grant witness immunity the level of
prosecutorial misconduct must deliberately distort the fact-finding process. Id. at 182. Unsurprisingly, in
these circuits defense-witness immunity has never been granted. Id.
79United States v. Ebbers, 458 F.3d 110, 112 (2d Cir. 2006).
80Id.
81Id.
82Id.
83Id. at 117.

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Ebbers Prosecutorial Misconduct Majority Approach

In Ebbers, the Second Circuit drew on its previous decision in United States v. Burns84 and set forth the test
for determining whether the extent of the prosecutorial misconduct warrants the grant of defense witness
immunity.85 In doing so, the court stated that such a decision requires considering whether:
(1) the government has engaged in discriminatory use of immunity to gain a tactical advantage, or
through its own overreaching, has forced the witness to invoke the Fifth Amendment; and (2) the
witness testimony will be material, exculpatory and not cumulative and is not obtainable from any
other source.86

The Second Circuits approach is a two-prong test. 87 Essential to this approach is that there must be some
type of prosecutorial misconduct or governmental abuse. 88 Prosecutorial misconduct can occur in two ways:
(1) if the prosecutor grants immunity to the prosecution witness and denies immunity to the defense witness
with the intent of distorting the fact-finding process; 89 and (2) if the prosecutor threatens or badgers a
potential defense witness in order to discourage him from testifying. 90 Showing either form of prosecutorial
misconduct satisfies the first prong of the Second Circuits approach. 91 Although, denying immunity to one
witness while granting immunity to another does not amount to prosecutorial overreaching per se. 92
Similarly, there is no prosecutorial overreach when the immunity-seeking witness is a target for future
prosecution.93 The Second Circuit further explained that this test requires a district court [to] find facts as to
the governments acts and motives and then balance factors relating to the defendants need for the evidence
and its centrality, or lack thereof, to the litigation.94
C. The Ninth Circuits Prosecutorial Misconduct Minority Approach
The Ninth Circuit also focuses on prosecutorial misconduct in its approach to defense-witness
immunity,95 and it has been coined the prosecutorial misconduct minority approach. 96 Before United States v.
Straub, the Ninth Circuit was unclear about whether a defendant requesting immunity must show that the
prosecutors purpose was to distort the fact-finding process, or whether prosecutorial actions that had the
effect of distortion were enough to trigger immunity. 97 Straub clarified how courts in the Ninth Circuit should
approach defense-witness immunity.98
84United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982) (inspiring the Second Circuits approach to
defense-witness immunity in Ebbers) .
85See Ebbers, 458 F.3d at 118; Burns, 684 F.2d at 1077.
86Burns, 684 F.2d at 1077.
87Ebbers, 458 F.3d at 119.
88Id.
89Id.; United States v. Angiulo, 897 F.2d 1169, 1192 (1st Cir. 1990); United States v. Shandell, 800 F.2d 322, 324
(2d Cir. 1986); United States v. Todaro, 744 F.2d 5, 10 (2d Cir. 1984).
90See Ebbers, 458 F.3d at 119; United States v. Lord, 711 F.2d 887, 891 (9th Cir. 1983); United States v. Morrison,
535 F.2d 223, 229 (3d Cir. 1976). This type of misconduct originated in Webb v. Texas, 409 U.S. 95, 9596 (1972)
(per curiam), where a judge continually warned the witness about the penalties of perjury, which forced the
witness to invoke the Fifth Amendment. See Carter v. United States, 684 A.2d 331, 341 (D.C. 1996) (en banc)
(discussing the prosecutorial misconduct in Webb).
91Blissett v. Lefevre, 924 F.2d 434, 442 (2d Cir. 1991).
92See id.
93Shandell, 800 F.2d at 324; see United States v. Turkish, 623 F.2d 769, 778 (2d Cir. 1980).
94Ebbers, 458 F.3d at 118.
95United States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008) (articulating the Ninth Circuit approach to
defense-witness immunity and reinforcing the first approach discussed in this Note, centered on
prosecutorial misconduct).
96See id. at 1162. Throughout this Note, this approach will be referred to as the Ninth Circuit Approach.
97Lipanovich, supra note 8, at 183 (emphasis in original).
98538 F.3d at 1162.

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10

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United States v. Straub

v. 49 | 231

In United States v. Straub, police executed a search warrant and arrested Straub at his home.99 There, police
uncovered marijuana plants and selling bags. 100 The police investigation discovered that Straub was involved
in a wide-ranging and long-standing conspiracy to manufacture and distribute methamphetamine. 101 Straub
was part of a gang known as The White Neck Crew (The Crew) that would unlawfully enter the homes
of other drug dealers to steal money and drugs. 102 Over Straubs five-year involvement, Straub and The Crew
committed several robberies, including one where Straub and an accomplice carried and used a firearm in
connection with an attempt to rob Robert Garrett and take more than 100 marijuana plants. 103 Straub
purportedly discharged a gun during this robbery.104 Ultimately, Straub was charged with conspiracy,
possession with intent to distribute, and manufacture of methamphetamine and marijuana, along with
charges related to the carrying, using, and discharging of a firearm in connection with the attempted
robbery of Robert Garrett . . . .105
At trial, Straub wanted to impeach the prosecutions star witness, Jacob Adams (Adams), by
introducing a prior inconsistent statement through another witness, Mike Baumann (Baumann). 106 The
defense knew Baumann would assert his Fifth Amendment privilege against self-incrimination. 107 The court
did not grant immunity under the use-immunity statute, and Straub was convicted and sentenced to 272
months in prison.108
On appeal, Straub challenged his conviction, arguing the district court erred in its denial of a request to
compel the prosecution to grant use immunity to defense witness Baumann. 109 The Ninth Circuit agreed
and remanded the case, ordering the district court to enter a judgment of acquittal on the shooting charges
unless the prosecution granted immunity to Baumann or did not use Adamss testimony on retrial. 110
2.

Straubs Prosecutorial Misconduct Minority Approach

In Straub, the Ninth Circuit created a new test for defense-witness immunity. 111 It held that in order to
compel use immunity for a defense witness, the defendant must demonstrate that: (1) the defense witness
seeking immunity must have relevant testimony; and (2) either (a) the prosecution intentionally caused the
defense witness to invoke the Fifth Amendment[s] self-incrimination protection; 112 or (b) the prosecution
granted immunity to its own witness, but denied immunity to a defense witness whose testimony would
have directly contradicted that of the government witness. 113 Under either scenario, if the prosecutors
actions result in a distortion of the fact-finding process, such that the defendant was denied his due process
right to a fundamentally fair trial, then the defense witness must be granted use immunity. 114

ANALYSIS
99Id. at 114849.
100Id. at 1149.
101Id.
102Id.
103Id.
104Straub, 538 F.3d at 1149.
105Id. Robert Garrett was shot during the attempted robbery. Id.
106Id. at 1150.
107Id.
108Id. at 1151; see 18 U.S.C. 6002 (2012).
109Straub, 538 F.3d at 1151.
110Id. at 1166.
111See id.
112Id.
113Id.
114Id.

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The Third, Second, and Ninth Circuit approaches to defense-witness immunity demonstrate the various
competing interests at play during a criminal trial.115 While the Third Circuit approach articulates the fivefactor effective defense theory, the Second and Ninth Circuits focus on the prosecutorial misconducts effect
on a defendants ability to defend himself. 116 The substantial difference between the circuit court approaches
to defense-witness immunity, along with the serious constitutional issues involved, demonstrate the need for
a universal approach.117
III.Analysis of the Third Circuit Approach and the Problems with Applying It
A. The Reasoning Behind the Third Circuit Approach
As previously discussed, the Third Circuit approach, or the effective defense theory, was derived from
Government of Virgin Islands v. Smith.118 It has been deemed the effective defense theory because it provides
federal courts with the inherent power to grant immunity to witnesses whose testimony is essential to an
effective defense.119 This judicial power is independent of the prosecutors statutory ability to grant
immunity to defense witnesses, and should be exercised to protect the fact-finding process that occurs
during a trial.120 The Third Circuit adopted this approach because it believed that a criminal defendant
should not be convicted because a witness, whose testimony would exonerate the defendant, has invoked the
privilege against self-incrimination.121 It deemed the empowerment of federal courts to grant immunity
consistent with other remedies where due process violations have occurred. 122 Despite its good intent, the
Third Circuits motives for creating the effective defense theory fall short of protecting a defendants ability
to elicit favorable testimony necessary to ensure a fair trial.123
The effective defense approach attempted to alleviate an impediment to the defendant by acknowledging
the unfair effect that withholding exculpatory information can have on a defendants due process rights. 124
However, it created insurmountable requirements and thus failed to achieve its goal. 125 Under this approach,
judicial immunity is triggered, not by prosecutorial misconduct or intentional distortion of the trial process,
but by the fact that the defendant is prevented from presenting exculpatory evidence which is crucial to his
case.126 This is a challenging burden to meet.127 In fact, only five of the forty-six reported decisions from the
Third Circuit sided with the defense. 128 With only about 11% of defendants being awarded immunity so as
to create reasonable doubt in the minds of the jury, this approach does not provide defendants with a
legitimate tool to present favorable evidence. 129 Under the faade of protecting defendants constitutional
rights, the Third Circuit is able to appear impartial and as though fair trials are regularly conducted, when in
115See supra Part II.
116See supra Parts II.A.2 C.
117See infra Part V.
118See 615 F.2d 964, 972 (3d Cir. 1980); see also supra Part II.A.
119See United States v. Pennell, 737 F.2d 521, 526 (6th Cir. 1984).
120See Smith, 615 F.2d at 969.
121Pennell, 737 F.2d at 527.
122See Smith, 615 F.2d at 971 (discussing high-profile cases granting new trials to protect a defendants due
process rights).
123See infra Part III.B (analyzing the problems with the Third Circuit approach).
124Smith, 615 F.2d at 972; see United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990) (noting that the
courts power to grant defense-witness immunity, under the effective defense theory, is grounded in a
defendants due process right to have exculpatory evidence presented to the jury).
125See Angiulo, 897 F.2d at 1191; Smith, 615 F.2d at 972.
126Smith, 615 F.2d at 969. This is the main difference between the Third Circuit approach and the other two
approaches that focus on prosecutorial misconduct. See United States v. Straub, 538 F.3d 1147, 1162 (9th Cir.
2008); United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982).
127Lipanovich, supra note 8, at 181 (discussing defendants difficulty in meeting these requirements).
128Id.
129See id.

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reality the Third Circuit is reluctant to elevate the rights of an accused over the governments interests. 130
Moreover, this approachs requirements permit a prosecutors desire to charge an immunity-seeking defense
witness (with a crime or public interest disservice) to offset a grant of immunity. 131 The fact that courts in the
Third Circuit seldom grant immunity to criminal defendants clearly demonstrates that this approachs
requirements are unattainable.132
B. The Problems Presented by the Third Circuits Approach
There are three major problems presented by the Third Circuits effective defense theory: (1) it creates a
separation of powers issue;133 (2) it requires judges to conduct a balancing test; 134 and (3) it places a high
burden on defendants.135
Courts have been reluctant to adopt the Third Circuits effective defense approach to defense-witness
immunity for a number of reasons. 136 First, is the separation-of-powers dilemma. 137 The separation-of-powers
doctrine is a constitutional notion that the three branches of government have different powers and
functions.138 Specifically, the effective defense approach requires courts to assume inherent authority to
grant judicial immunity themselves, creating a separation-of-powers problem because the power to grant
witness immunity is of legislative origin, and was granted to the executive branch. 139 The Third Circuit is
alone in its adoption of the effective defense theory, and even acknowledged the potential separation-ofpowers problem that this approach poses. 140 Courts frequently decline to adopt this approach because of the
separation of powers problems.141 Courts that oppose the Third Circuits approach argue that permitting the
judiciary to exercise this type of power, absent approval from the legislature, violates the separation-ofpowers principle.142
Another reason courts criticize the effective defense theory is because it requires judges to conduct a
balancing test.143 Courts are required to weigh a defendants need for particular witnesses against the
prosecutors reasons for not seeking immunity for the witnesses herselfan exercise not well-suited for
judicial decision making.144 This argument is unsound because at no point should prosecutorial interests
outweigh a defendants constitutional right to a fair trial.145 Moreover, this argument should not be used as
a reason to deny immunity to a defense witness because that would create an open door argument for
130See Earl v. United States, 361 F.2d 532, 53334 (D.C. Cir. 1966) (discussing concerns about a defendants
inability to provide immunity to a witness with exculpatory information); FEDERAL PROCEDURE, supra note
19.
131Smith, 615 F.2d at 973.
132See Lipanovich, supra note 8, at 181.
133Smith, 615 F.2d at 971.
134See Lipanovich, supra note 8, at 196.
135See id.
136United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991); see FEDERAL PROCEDURE, supra note 19.
137Smith, 615 F.2d at 97172; see FEDERAL PROCEDURE, supra note 19.
138Phillip B. Kurland, The Rise and Fall of the Doctrine of Separation of Powers, 85 MICH. L. REV. 592, 593
(1986). The separation of powers is necessary in order to ensure that there is a balanced government. See id.
139United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990).
140See Angiulo, 897 F.2d at 1191 (This theory has been rejected . . . by virtually every other court that has
considered the issue . . . .); Smith, 615 F.2d at 971; see, e.g., United States v. Tindle, 808 F.2d 319, 325 n.4 (4th
Cir. 1986) (emphasizing that the courts have criticized the effective defense theory and labeling it the
minority approach to defense-witness immunity).
141See Mohney, 949 F.2d at 1401.
142Angiulo, 897 F.2d at 1191; see, e.g., United States v. Pennell, 737 F.2d 521, 527 (6th Cir. 1984) (pointing out
the separation of powers problem presented by the Third Circuits effective defense theory approach).
143See Angiulo, 897 F.2d at 1191.
144Id.; see United States v. Turkish, 623 F.2d 769, 77577 (2d Cir. 1980).
145Lipanovich, supra note 8, at 197 (emphasis added).

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prosecutors.146 Prosecutors would be able to argue that they have an interest in prosecuting the same witness
who has the essential and clearly exculpatory information that could be helpful to the defendant, and
the court could conclude that the governmental interests outweigh the defendants rights. 147 This argument is
invalid and should never enter into a decision of whether to grant use immunity because then the witness is
not ensured absolute immunity, and thus the prosecutor will still be able to charge the witness. 148
Finally, the Third Circuits effective defense theory has been criticized because of the high burden it
places on defendants.149 The standard requiring the witnesss testimony to be both essential and clearly
exculpatory is too challenging for defendants. 150 This high burden is also problematic because it does not
provide enough protection for a defendants rights. 151 There are many situations where a defense witnesss
testimony may be essential or clearly exculpatory, but since both are required the defendant is left
without this witnesss testimony.152 Due to the obstacles associated with this approach, the Third Circuits
effective defense theory should not be adopted or even considered by the U.S. Supreme Court. 153
IV.Problems Presented by the Second Circuits Approach
The Second Circuits approach to defense-witness immunity is inferior to the Ninth Circuits approach
because: (1) it places too high of a burden on the defendant; 154 (2) it wrongly focuses on the prosecutors
intent;155 and (3) courts are reluctant to find prosecutorial misconduct.156
The Second Circuits approach to defense-witness immunity presents a number of problems. 157 The
biggest issue with the Second Circuits approach arises from the high burden of proof a defendant must
meet.158 A defendant is required to show more than just that the witness unquestionably has exculpatory and
material evidence not available from any other source. 159 A defendant is required to make an additional
showing that the prosecutors actions were deliberate and discriminatory. 160 Thus, the witness will not be
granted immunity if the defendant cannot demonstrate that the prosecutor acted deliberately and
discriminatorily in denying the witness immunity. 161 This causes courts to erroneously focus on the
146Id.
147See Govt of V.I. v. Smith, 615 F.2d 964, 972 (3d Cir. 1980); Lipanovich, supra note 8, at 197.
14818 U.S.C. 6002 (2012) (providing only that a witnesss testimony will not have full, absolute immunity
because the testimony may still be used against him in a future criminal prosecution for perjury, giving a
false statement, or otherwise failing to comply with the [use immunity] order).
149Lipanovich, supra note 8, at 196; see supra Part III.B.
150Lipanovich, supra note 8, at 196; see Smith, 615 F.2d at 972.
151Lipanovich, supra note 8, at 196.
152See id.
153See supra Part III.B.
154See United States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988); United States v. Burns, 684 F.2d 1066, 1077 (2d
Cir. 1982).
155See Lipanovich, supra note 8, at 194.
156Id. at 196 (noting that [prosecutorial misconduct] has never been found under the [Second Circuit]s test
for defense witness immunity).
157See id. at 183 (pointing out potential problems with the Second Circuits prosecutorial misconduct
approach).
158See United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006); Lipanovich, supra note 8, at 183 (referring to
the more stringent definition of prosecutorial misconduct, as applied by the Second Circuit).
159See, e.g., United States v. Gottesman, 724 F.2d 1517, 1524 (11th Cir. 1984) ([D]istrict courts may not grant
immunity to a defense witness simply because that witness possesses essential exculpatory information
unavailable from other sources.); Autry v. Estelle, 706 F.2d 1394, 1401 (5th Cir. 1983) (rejecting the Third
Circuits notion that judicial immunity could come into play when the defendant is prevented from
presenting exculpatory evidence which is crucial to his case) (quoting Govt of V.I. v. Smith, 615 F.2d 964,
969 (3d Cir. 1980)).
160Ebbers, 458 F.3d at 119.
161See id; Lipanovich, supra note 8, at 183.

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prosecutors intent.162 This approach will often be an ineffective and inadequate means to ensure a
defendants right to a fair trial is met. 163 Simply because the prosecution did not intend to place a defendant
at any sort of disadvantage does not mean that the prosecutors decision did not have that effect. 164
Finally, the Second Circuits approach fails because federal courts rarely find prosecutorial misconduct. 165
If courts are hesitant to find prosecutorial misconduct, the Second Circuits approach will be ineffective at
ensuring defendants have a fair opportunity to defend against the States accusations. 166 Similar to the
Third Circuit, the Second Circuit approach is flawed because it fails to accomplish its purported goal. 167
While it attempts to preserve a defendants constitutional rights, the Second Circuit approach regularly sides
with the prosecution, thus indirectly diminishing the defendants rights.168
V.The Supreme Court Should Adopt the Ninth Circuit Approach
While the Third and Second Circuit approaches are inadequate for a number of reasonsthe frequent
insurmountable burden on defendants, the separation of powers clash, the judicial balancing test, the focus
on the prosecutors intent, and the courts reluctance to find prosecutorial misconductthe Ninth Circuit
approach is best.169 The Ninth Circuit approach is the best way to address defense-witness immunity because
it is more lenient,170 focuses on the effect of the prosecutors actions, 171 and balances grants of immunity for
prosecutors and defendants.172 Accordingly, the Supreme Court should address the issue of defense-witness
immunity and adopt the Ninth Circuits superior approach.173
A. The Supreme Court Is the Correct Forum to Address the Issue of Defense-Witness Immunity
The Supreme Courtrather than the legislatureshould address defense-witness immunity. 174 On many
occasions, the Supreme Court has created important rights for criminal defendants, including the Miranda
right against self-incrimination.175 As a result of criminal defendants marginal place in society, an elected
162See Lipanovich, supra note 8, at 194.
163See, e.g., Ebbers, 458 F.3d at 119.
164Compare United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (granting immunity when
prosecutorial actions have the effect of distorting the fact-finding process), with Ebbers, 458 F.3d at 119
(requiring that the defendant show that the prosecutors actions were a deliberate intent to distort the factfinding process).
165See Lipanovich, supra note 8, at 196 (noting that [prosecutorial misconduct] has never been found under
the [Second Circuit]s test for defense witness immunity).
166Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
167See supra Part III.
168See Lipanovich, supra note 8, at 196.
169See supra Parts IIIIV.
170Compare United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (broadening prosecutorial
misconduct to include conduct that has the effect of distorting the fact-finding process), with United States v.
Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (limiting prosecutorial misconduct only to conduct that deliberately
distorts the fact-finding process).
171Compare Straub, 538 F.3d at 1162 (holding prosecutorial misconduct includes actions that have the effect of
distorting the fact-finding process), with Ebbers, 458 F.3d at 119 (requiring prosecutorial misconduct be shown
by deliberate actions that distort the fact-finding process).
172See Straub, 538 F.3d at 1157 (allowing courts to grant immunity for defense witnesses, instead of making
the immunity grants dependent on the prosecutors decisions).
173See supra Part V.
174See Lipanovich, supra note 8, at 197 (arguing that the Supreme Court, and not Congress, should create the
defense immunity right).
175Miranda v. Arizona, 384 U.S. 436, 46772 (1966) (creating the Miranda rights for criminal defendants).
Contra Michigan v. Tucker, 417 U.S. 433, 444 (1974) (claiming that Miranda warnings are not themselves
rights protected by the Constitution but [are] instead measures to insure that the [Fifth Amendment] right
against compulsory self-incrimination [is] protected).

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Congress will not represent their interests. 176 The constitutional foundation for courts to make or implement
protections for criminal defendants is found in both the Fifth and Fourteenth Amendment Due Process
Clauses.177 Opponents to this position argue that defense-witness immunity is an issue that should be dealt
with by Congress, but this is unlikely to happen because Congress is incapable of effectively enacting such
potentially controversial laws; thus, defendants are left with no alternative. 178 Accordingly, the Supreme
Court must take the responsibility to ensure criminal defendants rights are protected and address the issue
of defense-witness immunity.179
B. The Ninth Circuit Presents the Best Approach to Defense-Witness Immunity
The Ninth Circuits more lenient prosecutorial misconduct approach presents the best answer for
defense-witness immunity.180 Under the Ninth Circuit approach to defense-witness immunity a defendant is
required to show that the immunity-seeking witnesss testimony is relevant. 181 Further, the defendant must
show that the government either: (1) intentionally caused the witness to invoke the privilege against selfincrimination, in order to distort the fact-finding process, or (2) denied immunity to a witness whose
testimony would contradict that of a prosecutorial witness, having the effect of distorting the fact-finding
process.182 This test expands the definition of prosecutorial misconduct by allowing the defendant to show
either that the prosecutor intended to distort the fact-finding process or that the prosecutors actions had the
effect of distorting the fact-finding process. 183 This makes the Ninth Circuit approach superior because it
offers two ways whereby defendants can obtain immunity for these witnesses. 184 Having two avenues, both
representing circumstances where the defendants witness is unfairly denied immunity, helps preserve the
defendants right to a fair trial more than the other circuit approaches.185
C. The Ninth Circuit Approach Is More Lenient in Application
The Supreme Court should adopt the Ninth Circuit approach because it is more lenient. 186 This leniency
ensures that more defendants have the opportunity to meet the requirements and obtain a fair trial. 187 While
176Lipanovich, supra note 8, at 197 (stating that criminal defendants are not a popular group, and thus
they need the Supreme Court to protect their rights since Congress will not).
177See U.S. CONST. amend. V, XIV; see, e.g., Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (The rights to
confront and cross-examine witnesses and to call witnesses in ones own behalf have long been recognized as
essential to due process.).
178See United States v. Lenz, 616 F.2d 960, 963 (6th Cir. 1980) (While use immunity for defense witnesses
may well be desirable its proponents must address their arguments to Congress, not the courts.) (citations
omitted).
179More specifically the Supreme Court should adopt the Ninth Circuits approach to defense witness
immunity. See infra Part V.BE.
180See United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008); Lipanovich, supra note 8, at 19495 (noting
that the Ninth Circuits definition of prosecutorial misconduct is more inclusive than the Second Circuits
definition).
181Straub, 538 F.3d at 1162.
182Id.
183Compare id. (broadening prosecutorial misconduct to include conduct that has the effect of distorting the
fact-finding process), with United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (limiting prosecutorial
misconduct only to conduct that deliberately distorts the fact-finding process).
184See Straub, 538 F.3d at 1162.
185Compare id. at 116162, with Ebbers, 458 F.3d at 119.
186Compare Straub, 538 F.3d at 1162, with Ebbers, 458 F.3d at 119.
187See United States v. Wilkes, 662 F.3d 524, 550 (9th Cir. 2011) (reinforcing the Ninth Circuits commitment
to an approach that holds prosecutors accountable when the defendant does not receive a fair trial); Straub,
538 F.3d at 1164 (holding that the prosecutors conduct had the effect of distorting the fact-finding process,
and, as a result, denying the defendant a fair trial); infra Part V.C (arguing that the Ninth Circuits approach
is more lenient than either the Second or Third Circuits approaches).

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some may argue that the Ninth Circuit approach is too lenient and its requirements are too broad, these
opponents are wrong because the approach still provide[s] reasonable limitations on defense witness
immunity.188
Opponents of defense-witness immunity have presented a number of arguments, 189 with three
underlying rationales: (1) the immunity decision should be left to the Executive [Branch], (2) the defense
witness immunity will be abused by witnesses practicing cooperative perjury, and (3) the immunity grant
will impede a future government prosecution. 190 However, the arguments advanced against defense-witness
immunity are unpersuasive because of the important rights that immunity protects. 191
Opponents of defense-witness immunity argue that the immunity statutes wording indicates that the
Executive Branch is the only branch of government that may grant immunity. 192 Courts have interpreted this
language, many concluding that [w]hile use immunity for defense witnesses may [ ] be desirable . . . [those
in favor of defense witness immunity] must address their arguments to Congress, not the courts. 193 Those
opposed to defense-witness immunity have even argued that due to separation-of-powers concerns,
prosecutors are effectively insulate[d] from granting defense-witnesses immunity. 194 These arguments fail
because:
all courtsincluding those that have never found immunityhave cast aside this argument and made
it clear that under certain circumstances the refusal to grant immunity to a defense witness would be
an abuse of the discretion provided to the [judicial branch of the] government by the immunity act. 195

Although, any argument that defense-witness immunity violates the separation-of-powers doctrine is
erroneous if courts agree that in principle, and under some circumstances, defense-witness immunity should
exist.196 In this way, if courts recognize that immunity should exist, they cannot also claim separation of
powers problems when reconciling unfair judicial practices.197
Opponents also argue that defense-witness immunity will cause witnesses to lie and perjure themselves
in order to get a friend or accomplice acquitted. 198 While this concern has muster, it is without merit because
this type of situation was directly addressed in the use-immunity statute. 199 The use-immunity statute carves
out an exception where a persons immune testimony may be used against him in a prosecution for
perjury; that is, a witness who was previously granted immunity can be prosecuted for perjury if the
witness provided false testimony while under immunity. 200 This eliminates any type of cooperative-perjury
188Lipanovich, supra note 8, at 196 (noting that the Ninth Circuit approach requires that the testimony be
relevant and contradict that of a government witness who has been granted immunity, and includes
prosecutorial misconduct that has the effect of distorting the fact-finding process).
189See id. at 180, 190 (addressing the various arguments against defense-witness immunity).
190Id.; see Kastigar v. United States, 406 U.S. 441, 44647 (1972) (declaring immunity statutes as essential to
the effective enforcement of various criminal statutes).
191See Ullmann v. United States, 350 U.S. 422, 438 (1956) (emphasizing the importance immunity statutes
have in the constitutional landscape).
192See 18 U.S.C. 6003(a) (2012) (providing that a United States district court judge may grant immunity,
upon the request of the United States attorney).
193United States v. Lenz, 616 F.2d 960, 963 (6th Cir. 1980) (finding no authority for defense-witness immunity
in the Sixth Amendments compulsory process clause).
194United States v. Moussaoui, 382 F.3d 453, 468 (4th Cir. 2004).
195Lipanovich, supra note 8, at 180, 191 (emphasis added); see, e.g., United States v. Washington, 318 F.3d 845,
855 (8th Cir. 2003) (finding that, under certain circumstances where he abuses his discretion, the prosecutor
may be compelled to grant immunity).
196Lipanovich, supra note 8, at 180, 191.
197See id.
198See, e.g., Blissett v. Lefevre, 924 F.2d 434, 44142 (2d Cir. 1991) (finding that prosecutors are best equipped
to handle grants of immunity because it reduces the possibility of cooperative perjury between the
defendant and his witness).
199See 18 U.S.C. 6002 (2012).
200Id.

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argument since a witness who provides false testimony under the use immunity statute may still be
prosecuted for perjury.201
Finally, the last argument presented by those opposed to defense-witness immunitythat use-immunity
grants will impede future prosecutions of the witnessalso fails. 202 While this argument may have prevailed
when courts granted transactional immunity,203 Congresss adoption of use immunity renders this argument
ineffective.204 The Supreme Court has noted that there is little difference between a witness invoking his Fifth
Amendment privilege and being granted use immunity, in that use immunity does not restrict the ability to
bring future charges any more so than invoking the Fifth Amendment. 205 While courts may consider the
governments interest in a possible future prosecution as a factor against granting immunity to a defense
witness, it must again be emphasized that no governmental interest should per se outweigh a defendants
constitutional right to a fair trial. 206 In conclusion, the arguments against granting immunity, while concrete
and articulable, are unpersuasive and do not overcome a defendants constitutional rights. 207

201See id. (providing that a witnesss immunized testimony may be used against him in a perjury
prosecution).
202United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006).
203Transactional immunity is immunity from prosecution for offenses to which compelled testimony
relates, whereas use immunity is full immunity from the use of compelled testimony and evidence
derived therefrom. Kastigar v. United States, 406 U.S. 441, 443 (1972).
204Compare Earl v. United States, 361 F.2d 531, 533 (D.C. Cir. 1966) (applying a transactional immunity
statute, which allows a witness to avoid prosecution for any crimes referenced on the stand), with Ebbers, 458
F.3d at 11822 (2d Cir. 2006) (applying the use immunity statute of 18 U.S.C. 6002, which restricts the
amount of immunity a witness receives to only providing that the witnesss testimony will not be used
against him in a future prosecution).
205Kastigar, 406 U.S. at 462 (We conclude that the immunity provided by 18 U.S.C. 6002 leaves the witness
and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth
Amendment privilege.).
206See Govt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980) (articulating an approach to defense-witness
immunity that can consider the governments interest in denying immunity).
207See Lipanovich, supra note 8, at 180, 19095 (deeming a defendants right to a fair trial as more important
than any possible arguments against grants of immunity for defense witnesses).

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D. The Supreme Court Should Adopt the Ninth Circuit Approach Because it Focuses on the Effect of the
Prosecutors Actions

The Supreme Court should adopt an approach that accounts for the effect of the prosecutors actions. 208
In this regard, the Supreme Court should adopt the Ninth Circuits broader view of prosecutorial
misconduct because it encompasses actions that have the effect of distorting the fact-finding process as
opposed to only those that deliberately and intentionally distort it. 209 Straub demonstrates exactly the type of
problem that can arise from using the Second Circuits narrow and restricted approach to prosecutorial
misconduct.210 In Straub, it would have been difficult for the defendant to prove the prosecutor had the intent
to distort the fact-finding process, even though the prosecutors actions clearly had that effect. 211 Thus, under
the Second Circuits approach, the inability to prove intent on behalf of the prosecutor would guarantee a
denial of the defendants immunity request, 212 even though denying this request would result in a due
process violation because the defendant would not be able to defend against the States accusations. 213 By
shifting the focus from intentional prosecutorial misconduct to the effects of the prosecutorial conduct, more
defendant-adverse scenarios can be accounted for and less infringement on defendants rights will occur. 214
Additionally, intentional prosecutorial misconduct should not be a requirement under the defensewitness immunity approach that the Supreme Court ultimately adopts. 215 The Second Circuits reliance on
prosecutorial misconduct as a necessary requirement in order for a defendant to receive a fair trial is
misplaced.216 Granting immunity to a defense witness should be based upon whether the witnesss proffered
testimony is relevant and supports the defendants case. 217 A defense witnesss immunity, and the
defendants due process rights, should not be based on a defendants ability to prove a prosecutors
deliberate misconduct.218 Defense-witness immunity grants should depend on the testimonys relevance and
the effect of the prosecutors actions (i.e., selective immunity or the effect of distorting the fact-finding
process).219 Since the Ninth Circuits approach focuses on the effect of the prosecutors actions, whereas the
208See id. at 195 (pointing out the detrimental effects that prosecutorial misconduct can have on a defendant).
209Compare Ebbers, 458 F.3d at 119 (requiring that prosecutorial misconduct be shown by deliberate actions
that distort the fact-finding process), with United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (holding
that prosecutorial misconduct can be proven with actions that have the effect of distorting the fact-finding
process).
210See Straub, 538 F.3d at 1155 (referring to the district courts ruling, which held that if defendants were
required to show prosecutorial misconduct, then Straubs claim would be unsuccessful).
211Id. at 1157.
212See id.; Lipanovich, supra note 8, at 186.
213Chambers v. Mississippi, 410 U.S. 284, 29495 (1973).
214See Lipanovich, supra note 8, at 195 (arguing that the effects of prosecutorial misconduct can have far
more detrimental effects to a defendant than solely prosecutorial intent).
215See id. at 196 (Prosecutorial misconduct should not be a requirement for the granting of immunity.).
216See id. at 19596 (opining that one problem with the Second Circuits approach is its reliance on
prosecutorial misconduct).
217See Straub, 538 F.3d at 1157 (requiring that the defense witness seeking immunity have relevant
testimony).
218See id. at 1161 (The right to compel use immunity because of selective denial of immunity is a right to
due process . . . where the Constitution focuses our attention on the fundamental fairness of the trial more
than on the intentionswhether good or badof the prosecution.); Chambers, 410 U.S. at 294 (noting that a
defendants due process rights amount the ability to put on a full defense); Lipanovich, supra note 8, at 195
96 (arguing that a defendants due process rights should be protected by an approach that grants immunity
to witnesses when the prosecutors misconduct has the effect of distorting the fact-finding process).
219See Straub, 538 F.3d at 115658 (holding that a defendant is denied a fair trial if the prosecution uses
selective immunity, by granting immunity to a government witness, but denies it to a defense witness whose
testimony directly contradicts that of the government witness, or when the prosecutor commits misconduct
that has the effect of distorting the fact-finding process).

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Third and Second Circuit approaches do not, the Supreme Court should adopt the Ninth Circuits
approach.220
E. The Ninth Circuit Approach Balances the Grants of Immunity for Prosecutors and Defendants
The Supreme Court should adopt the Ninth Circuits approach because it creates the perfect balance
between granting immunity to prosecution and defense witnesses. 221 Opponents argue that a criminal
prosecution cannot be a place of equalized power because prosecutors have many affirmative obligations. 222
Accordingly, these opponents readily reject any arguments advancing the idea that there should be a more
equal balance of power between prosecutors and defendants. 223 Despite these counterarguments, the idea of
equal power between the two sides cannot be so easily rejected. 224
The Ninth Circuit approach acknowledges a power balance between prosecutors and defendants,
because it holds the prosecutors accountable in grants and denials of immunity while it also provides
another way for defendants to get immunity for their witnesses (i.e., grants of immunity by the court). 225 One
of the ways the Ninth Circuits approach equalizes the power imbalance is through its standard of proof. 226
The Ninth Circuits approach requires only that the testimony be relevant, compared to clearly
exculpatory and essential to the defense. 227 This standard still maintains that the testimony be relevant
and that it conflicts with an immunized government witness, but lowers the standard from absolute terms
(e.g., clearly and essential).228 This provides a defendant with another option to defend himself because a
key defense witness, who would never be granted immunity under the Second or Third Circuits approaches,
may be granted immunity under the Ninth Circuit approach. 229 The witness may have testimony that is
relevant or exculpatory, but this testimony would not be allowed under the Second Circuit approach unless
the defendant could show intentional prosecutorial misconduct. 230 This same testimony would also be barred
220See supra Part V.B.
221See Straub, 538 F.3d at 1157 (allowing courts to grant immunity for defense witnesses instead of making
the immunity grants dependent on the prosecutors decisions).
222See United States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980).
223E.g., id.; see also United States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978) (Due process has never yet
been held to require that the defendant be permitted to marshal precisely the same investigative and legal
resources as the prosecution . . . .).
224See Lipanovich, supra note 8, at 195 (Despite the various arguments against defense witness
immunity . . . none overcome the need to ensure a fair trial for every defendant.).
225See Straub, 538 F.3d at 1157 (providing for court-granted use immunity to defense witnesses meeting
certain criteria).
226Id. (providing a prosecutorial misconduct approach to defense-witness immunity).
227Compare id. (requiring only relevance), with United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006)
(citations omitted) (employing a prosecutorial misconduct approach which requires that testimony of the
witness be material, exculpatory and not cumulative), and Govt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir.
1980) (explaining that the effective defense theory requires defense-witness immunity when it is found that
a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case
and when the government has no strong interest in withholding use immunity). This more flexible
relevance standard predates Straub. See United States v. Westerdahl, 945 F.2d 1083, 1086 (9th Cir. 1991).
228Lipanovich, supra note 8, at 180, 196.
229Compare Straub, 538 F.3d at 1157 (requiring only relevance), with Ebbers, 458 F.3d at 118 (employing a
prosecutorial misconduct approach which requires that testimony of the witness be material, exculpatory
and not cumulative), and Smith, 615 F.2d at 974 (explaining that the effective defense theory requires defense
witness immunity when it is found that a potential defense witness can offer testimony which is clearly
exculpatory and essential to the defense case and when the government has no strong interest in
withholding use immunity).
230See Ebbers, 458 F.3d at 118 (using a prosecutorial misconduct approach which demands that the witnesss
testimony be material, exculpatory and not cumulative, and that the defendant show that prosecutorial
misconduct occurred).

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under the Third Circuits approach because the testimony not only has to be exculpatory and essential, but
the governments interests in not granting immunity can also override a grant of immunity. 231 Therefore, the
Ninth Circuit is the best approach because: it enables the defendant to put on a full defense; provides the
jury with more information to use during their fact-finding process; and, under those circumstances, it is
more likely that the defendant receives a fair trial.232

CONCLUSION
In order to ensure a defendants constitutional rights are protected and not infringed upon, the Supreme
Court should adopt the Ninth Circuits defense-witness immunity approach. While three approaches to
defense-witness immunity have emerged, the Second and Third Circuit approaches fail to address the
paramount interest at stakea defendants constitutional rights, especially the right to a fair trial. The
Second Circuits approach is too focused on requiring the defendant to prove prosecutorial misconduct. The
Third Circuits approach has too high of a burden. Since both the Second and Third Circuit approaches are
inadequate, the Supreme Court should adopt the approach formulated by the Ninth Circuit. The Ninth
Circuits approach is superior because it expands the idea of prosecutorial misconduct, broadening the
Second Circuits definition, and provides only that the testimony be relevant, as opposed to the stringent
clearly exculpatory and material standards set forth by the Third Circuit. While there may be concerns
regarding the expansion of defense-witness immunity, none of these concerns override the defendants
constitutional right to a fair trial where the defendant can fully put on a defense. In order to ensure a
defendants due process rights are protected, the Supreme Court must adopt the Ninth Circuits approach to
defense-witness immunity.

231See Smith, 615 F.2d at 974 (explaining that the Third Circuits approach to defense-witness immunity
requires testimony that is is clearly exculpatory and essential to the defense case, as well as it be a situation
where the government has no strong interest in withholding use immunity).
232See Lipanovich, supra note 8, at 180, 18485.