719
Informal Immunity Distinguished From Formal Immunity
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Statutory immunity, also known as formal immunity, should be
distinguished from informal immunity. The latter term, often referred to as
"pocket immunity" or "letter immunity," is immunity conferred by agreement
with
the witness. For example, the government and a cooperating defendant or
witness
might enter into a plea agreement or a non-prosecution agreement if the
defendant
or witness agrees to cooperate. Testimony given under informal immunity is
not
compelled testimony, but is testimony pursuant to an agreement and thus
voluntary. The principles of contract law apply in determining the scope of
informal immunity. United States v. Plummer, 941 F.2d 799, 802 (9th
Cir.
1991); United States v. Britt, 917 F.2d 353 (8th Cir. 1990),
cert.
denied, 498 U.S. 1090; United States v. Camp, 72 F.3d 759 (9th
Cir.
1996) [replacing 58 F.3d 491 (9th Cir. 1996)]. Grants of informal immunity
that
do not expressly prohibit the government's derivative use of the witness's
testimony will be construed to prohibit such derivative use.
Plummer,
supra. But a grant of informal immunity that expressly provides for
derivative use of the testimony by the government will be upheld. United
States v. Lyons, 670 F.2d 77, 80 (7th Cir. 1982), cert.
denied,
457 U.S. 1136.
An important difference between statutory/formal immunity and
informal
immunity is that the latter is not binding upon the States. This follows
from
the fact that the local prosecutor representing the State is normally not a
party
to the agreement between the witness and the Federal prosecutor, and thus
cannot
be contractually bound by the Federal prosecutor's agreements.
[cited in USAM 9-23.100] | |