Thesis on "Defense Witness Immunity"

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The Fifth Amendment

The Fifth Amendment to the United States Constitution, is part of the Bill of Rights and provides protection against abuse of government authority in legal proceedings. The rights contained in the Fifth Amendment can be traced to English common law and specifically the Magna Carta in 1215. Stated specifically in the text of the Fifth Amendment is as follows:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation"

The Fifth Amendment protects witnesses from being compelled to incriminate themselves. When an individual pleads the 'Fifth' they are invoking their Constitutional right to refuse to answer a question because their response might provide evidence that is self-incriminating of an illegal or criminal act that could be punishable by fines or penalties or even forfeiture.

The Sixth Amendment

The Sixth Amendment to the United States Constitution is part of the United States Bill of Rights which sets the protection of individual Constitutional rights as they are related to federal court criminal prosecutions. The protections contained in this amendment have been applied by the Supreme Court to the states through the Fourteenth Amendment Due Process Clause. The text of the Sixth Amendment states as follows:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

Specific rights under the Sixth Amendment include the following rights:

(1) Right to a speedy trial;

(2) Right to a public trial;

(3) Right to a trial by jury;

(4) Right to be notified of offense which individual has been accused of committing;

(5) Right to confrontation of witnesses for prosecution;

(6) Right to counsel; and (7) Right to self-representation.

PART II

Sosnov (nd) states in the work entitled: "Separation of Powers Shell Game: The Federal Witness Immunity Act" that there has always "been a tension between the recognition of testimonial privileges and the need for testimony to ensure an accurate and fair fact-finding process." (Sosnov, nd)

A Decision is often made as to whether the witness's privilege is overcome by an exception, the need for such testimony, or other countervailing reasons Many circuits have held that Congress has clearly delegated authority to the executive branch and granting immunity is at the prosecutor's discretion." (nd)

The case of United States of America, Appellee, v. Norman Turkish, Defendant-Appellant. United States Court of Appeals for the Second Circuit, 623 F.2d769 (1980) is one that involves a criminal appeal primarily on the issue of whether a defendant is entitled to immunity conferred upon witnesses for the defense invoking their rights against self-incrimination. This appeal was brought by Norman Turkish who was convicted by a jury in the Southern District of New York of tax evasion and filing of false returns on his income taxes as well as for conspiracy to defraud the United States. The evidence established by the government was that Turkish was a primary participants in a scheme that utilized means that were fraudulent in enabling C.R. Rittenberry and Associates, Inc., an oil company, to create artificial tax losses in one year, offset by equally artificial taxable gains in a subsequent year, thereby postponing for a year the taxes on millions of dollars of corporate income." (Atl Law, 2009)

It is related that the scheme is one that involved the use of "tax straddles, the simultaneous purchase and sale at different prices of equal numbers of commodity futures contracts to be performed in different months. In the normal use of tax straddles, opportunities for arguably lawful tax avoidance are created when the market price varies from the prices at which the original contracts were both bought and sold. If the market declines, the trader offsets his purchase with an equivalent sale, thereby locking in a tax loss on his original purchase. He then offsets his original sale contract with an equivalent purchase, thereby locking in an approximately equal profit on his original sale contract. He benefits when the profit is taxable in the year following realization of the loss. In normal transactions the trader takes the risk that market price movements will be too narrow to create much opportunity for tax postponement and also the more serious risk that prices will not move uniformly with respect to both his original contracts. In the latter event the profit available to be locked in may be less than the locked-in loss. Turkish and others avoided these risks by fraudulently manipulating virtually the entire business of one trading ring on the New York Cotton Exchange, the Crude Oil Futures Market. This enabled them to move prices up and down at will, so that Rittenberry could take short-term capital losses during one tax year and defer an equal amount of off-setting capital gain to a subsequent year, all with no risk and a considerable saving in the postponement of taxes. Turkish not only orchestrated the fraudulent aspects of the scheme but also evaded taxes on the money he received as compensation for his role."

It was the contention of Turkish that his conviction should be reversed due to the conspiracy count of the indictment failing to charge an offense and being "unconstitutionally vague."

The claim for defense witness immunity arose when the government, presenting its case, called various witnesses involved in the fraud and some of whom were coconspirators. Of these it is stated that three had plead guilty to participating in the conspiracy and had in return received agreements in letter form that they would not be prosecuted "for any other commodity market crimes or related tax offenses if they testified truthfully."

It is stated that Turkish and his co-defendant "during the trial and after the Government had concluded its case...moved that seventeen of the prospective defense witnesses be granted "use" immunity and required to testify under 6002. They argued that these witnesses could provide exculpatory testimony, but would invoke their Fifth Amendment privilege and decline to testify unless compelled to do so. Judge Broderick invited the Government to consider granting "use" immunity to these witnesses pursuant to 6002. The Government did consider the matter, but decided not to grant immunity. Judge Broderick then reserved decision on defendants' motion until after the trial, at which time the defendants moved for a new trial or acquittal. On August 23, 1979, Judge Broderick denied the defendants' motion."

It is stated that in a subsequent opinion, United States v. Turkish (S.D.N.Y.1979), Judge Broderick "...set forth his analysis of the issue and his reasons for denying… READ MORE