Superior Court Judge Mary Jacobson’s decision last week was covered in monst newspapers and blogs as an affirmation of the right of Bridgegate witnesses to assert their Fifth Amendment right against self incrimination. However, as Tom Moran noted in a Star Ledger editorial, the importance of this 100 page opinion is what it says about witness immunity.
Judge Jacobson opined that a legislative investigation committee may have the right to grant immunity to witnesses. In criminal grand jury proceedings, once immunity is granted, testimony from the witnesses can be compelled.
The ability to grant immunity is a powerful investigative tool that allows an investigation to focus on its target. However, it is not without negative consequences if it is granted incorrectly. Oliver North’s conviction in the Iran-Contra scandal was overturned based upon the immunity he was granted in exchange for his testimony before Congress.
A witness that is granted immunity is protected because the testimony provided by him/her to the committee is prohibited from being used against him/her by prosecutors. However, immunity is not a ban on criminal prosecution based upon other evidence gathered by the prosecutors.
One of the first reported uses of immunity dates back to the early eighteenth century. The justices of the peace were quasi-professionals investigating and prosecuting criminals. The justices of the peace could grant immunity from prosecution to a culprit who “made himself an evidence” against other criminals. See, for example, the trial testimony of justice of the peace Gwyn Vaughan explaining how he chose among competing applications of a group of shoplifters wanting to become the crown witness. The Proceedings at the Sessions of the Peace, and Oyer and Terminer for the City of London and the County of Middlesex (Aug.-Sept. 1726) at 4.
In a more well-known story, Frank James, brother of the infamous Jesse James, was being prosecuted for murder. The trial was held in 1883 and the prosecutor, William H. Wallace, called a member of the James gang to the stand, one Dick Liddil. Mr. Liddil was a convicted horse thief, an accused murderer, and a traitor to the James gang. Liddil turned State’s evidence and testified against Frank James in exchange for immunity for his crimes. See State v. Frank James, Murder, Gallatin, Daviess County, Missouri September, 1883.
As the use of granting immunity to witnesses in criminal prosecutions increased over time, the question arose whether the government can compel an unwilling witness to testify over his assertion of the Fifth Amendment privilege against self-incrimination. The answer was provided by the Supreme Court in Kastigar v. United States, 406 U.S. 441 (1972), where the Court ruled that the grant of immunity is sufficient.
Judge Jacobson’s ruling as it relates to the power of legislative investigation committees to grant immunity raises an interesting question for municipalities as well. Governing bodies have the power to form municipal investigation committees to review local actions. Immunity has never been granted to a witness before such a committee. Until now!
If you’re interested in reading more, check out the article by my Colleague Robert E. Levy, where he discusses the First Judicial Decision involving Bridgegate. It contains a compelling examination of the Fifth Amendment’s protection against self-incrimination.