Criminal Defense: Improper Immunity in a Co-defendant Case

Posted on Posted in Accomplice, Co-Defendant

Criminal Defense: Improper Immunity in a Co-defendant Case

Immunity in General in a Co-defendant Case

Under Penal Code 1324, a prosecutor has the authority to seek immunity for a certain witness in exchange for his or her testimony in any given case.  In the specific instance of a co-defendant case, this is especially important.  If the prosecutor, upon evaluating a case, feels that one co-defendant is “more guilty” of the crimes than other(s), he or she may seek a grant of immunity for the “less guilty” co-defendant.  The prosecutor will then petition the court for the grant of immunity on the promise by the immunized co-defendant that he or she will state certain things against the remaining co-defendant.  The judge will take the prosecutors argument into consideration and either grant or deny the immunity.


Often, prosecutors will offer a grant of immunity in an attempt to get the co-defendant to make critical admissions or statements.  A prosecutor will promise immunity to a co-defendant to get information from them.  However, the immunity is not granted through them, but through the court.  A co-defendant should be careful to allude to information known, and not make actual statements or admissions, until such time as immunity has been granted.


Improper Coercion for a Grant of Immunity in a Co-defendant case

A defendant is denied a fair trial if the prosecutor’s case relies heavily on co-defendant testimony and the co-defendant witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.  For example, when the co-defendant is granted immunity subject to the condition that his or her testimony is the same as an earlier statement given to police, or that the testimony result in the defendant’s conviction. See People v Maury (2003) 30 C4th 342, 417. An agreement requiring only that the witness testify fully and truthfully, however, is valid. People v Badgett (1995) 10 C4th 330, 358; People v Reyes (2008) 165 CA4th 426, 433.


Improper Conditions on a Grant of Immunity in a Co-defendant Case

A prosecutor cannot give a grant of immunity that requires the co-defendant witness to testify in a particular way or that is subject to a condition that the witness’s testimony result in the defendant’s conviction. People v Sully (1991) 53 C3d 1195, 1216.  The grant of immunity cannot be unduly coercive, but must leave the co-defendant witness enough room to make the decision of his or her own free will.  For example, the immunity cannot be based on a co-defendant witness’s ability to make the same exact statements that he or she made to cops previously.  However, it can be based on the promise that the prosecutor will not charge the co-defendant witness with murder, so long as there was proof that he or she did not “pull the trigger”.  People v Knox (1979) 95 CA3d 420, 430.


Improper Conditions Choosing One Defendant Over Another in a Co-defendant Casse

A prosecutor cannot unfairly choose one co-defendant over another for the grant of immunity.  The prosecutor has discretion over the choosing of co-defendants, but that right is not indefinite.  There must be substantial reasons for choosing one (or more) over the other(s).  The court’s job is to analyze and evaluate the choosing of the defendant for immunity, and ensure that it was not unfairly chosen.


Contact the Law Office of Stephanie M. Arrache, a criminal defense firm, if you have any questions about Immunity in a Co-defendant case.

Law Office of Stephanie M. Arrache

A Criminal Defense Firm

PO Box 3297

Palm Springs, CA 92262

Office: (760) 237-8295

Cell: (760) 668-8295

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