Immunity in exchange for testimony

US Court

The whole essence of the legal/justice system is to ensure that justice is both done and seen to be done.

In pursuing this ideal, there are often situations where some actions taken by the state may look distasteful to the onlooker.

The state is usually more concerned about the end game rather than an immediate victory that will defeat a long term and long lasting one. You can compare it to sacrificing a pawn to win the game.

In some other situations, the state’s hands could be tied by the provision of the Fifth Amendment which means that the witness can refuse to provide any testimony which may implicate them. This testimony may however be pivotal to the case of the prosecution. To therefore get this witness to give the testimony without fear of prosecution for their part in the crime, immunity can be offered in exchange for said testimony.

This is the whole point behind immunity given for testimony. In this article, we will briefly seek to throw more light on this subject that many find distasteful. Hopefully, this will help more folks understand the rationale behind it.

What is Immunity?

From the detailed explanation we can find in this article, immunity simply refers to a kind of deal which the state or the prosecution offers an individual in exchange for their testimony in a case. Like we already stated at the beginning of this article, the need for this deal is usually hinged on the fact that by providing the testimony, the individual will be providing evidence that shows their involvement in a criminal offence.

By entering into this deal, the witness is assured that the state will not prosecute them for their part in the crime to which they are providing testimony or evidence.

As part of the legal process, whether or not a person has been given immunity does not infringe on their right to bail. You can and should pursue this right, taking advantage of the different options you will find here.

It is however important to note that there are two forms in which this immunity deal may be presented. The first is transactional while the second is use and derivative use. Understanding the difference between this two is very important.

Use and Derivative Use Immunity

In this kind of deal, the state or prosecution is only promising not to prosecute the witness based on his or her testimony. This means that should the state or prosecution find other evidence outside of the testimony for which this kind of immunity was granted, the individual can then be prosecuted.

Transactional Immunity

This kind of immunity offers the witness a lot more cover. If a witness is granted this type of immunity, it means that the state will not prosecute such a witness for that crime regardless of any other evidence that may emerge. This is why it is also known as total or blanket immunity.

You can learn the different between the two here:

Important Facts to Note about Immunity

That a person has been granted immunity does not necessarily mean that they are totally free from prosecution for that offence. Of course, if it is a transactional immunity, the individual has ample cover. However, certain circumstances can bring about an annulment of the deal.

Let’s look at a few of such circumstances.

Refusal to Testify

After a person has been granted a deal by the prosecution, they are expected to begin to “spill the beans” so to say. Should they then refuse to provide the testimony for which they were granted the deal, they could be held in contempt of court, fined or jailed.


If the witness is found to have perjured him/herself while providing the testimony, the prosecution can argue that the witness is not meeting their end of the deal and so request the deal to be rescinded. The witness must be seen to be telling the truth and nothing but the truth at all times.

Federal/State Interest

This is one area that many may not be aware of. It is important to understand from whom you are getting this immunity. If an individual agrees on an immunity deal with the state, the deal is not binding on the Federal government. The same applies with the state if the deal was reached with the Federal government.

Other Important Points to Note

Once the deal has been granted, the witness can no longer plead the Fifth. S/he is expected to provide every information requested by the prosecution.

A witness has the right to waive his or her immunity. By simply writing and informing the court of this, they will be open to prosecution.


It is one thing to be granted immunity and another to take full advantage of it. We mentioned the possibility of an individual voluntarily waiving the immunity granted. However, some others can also “waive” their deal ignorantly. For this reason, it is important that an attorney is present to guide you through the deal.