Separation of powers shell game: The federal witness immunity act

Temple Law Review

Volumn 73, Issue 1, 2000, Pages 171-217

  Sosnov, Leonard N ^a  

^a WIDENER UNIVERSITY   (United States)

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EID: 9744238884     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (353)

1. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) ("The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law."); Kastigar v. United States, 406 U.S. 441, 443 (1972) (footnote omitted) ("[T]he general common-law principle that 'the public has a right to every man's evidence' was considered an 'indubitable certainty' that 'cannot be denied' by 1742."); Clark v. United States, 289 U.S. 1, 13 (1933) (asserting privilege for deliberations of petit jury references "bear with them the implications of an immemorial tradition").
2. See, e.g., United States v. Zolin, 491 U.S. 554, 555-56 (1989) (considering crime-fraud exception to attorney-client privilege).
3. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 667-68 (1972) (balancing confidential source privilege for reporter with need for testimony); Roviaro v. United States, 353 U.S. 53, 60-61 (1957) (noting government-confidential informant privilege may have to yield to defendant's need for testimony of informant at criminal trial).
4. The hypothetical scenarios are based on any privilege where a discretionary decision must be made whether to honor the privilege or compel testimony.
5. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 60-61 (1987) (finding criminal defendant entitled to in camera review for court to determine whether confidential protective service agency records should be disclosed to defendant because records are material to fair trial); Zolin, 491 U.S. at 567-68 (determining court can make in camera review, when appropriate, of materials alleged to be protected by attorney-client privilege to determine if crime-fraud exception applies).
6. Organized Crime Control Act of 1970, 18 U.S.C §§ 6001-6005 (1995). This Article addresses only sections 6002 and 6003 (hereinafter "1970 Immunity Act"), because they are the provisions which apply to immunity grants at grand jury and trial proceedings. Sections 6002 and 6003 provide as follows: § 6002. Immunity generally Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to - (1) a court or grand jury of the United States, (2) an agency of the United States, or (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. § 6003. Court and grand jury proceedings (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this title. (b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any designated Assistant Attorney General or Deputy Assistant Attorney General, request an order under subsection (a) of this section when in his judgment - (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. 1970 Immunity Act §§ 6002-6003.
7. While 18 U.S.C. § 6003(a) provides for a court-issued order before a witness testifies pursuant to an immunity grant, the prosecutor is the actual decision-maker with complete control over the immunity decision. See infra notes 85-90 and accompanying text for an explanation that a judge must grant the immunity order when a government application is filed.
8. 18 U.S.C. § 6002. See infra text accompanying notes 94-105 for a discussion of Kastigar v. United States, 406 U.S. 441 (1972).
9. Roald Y. Mykkeltvedt, United States v. Alessio - Due Process of Law and Federal Grants of Witness Immunity for Defense Witnesses, 31 MERCER L. REV. 689, 693 (1980) ("Predictably, the government has never determined that the public interest requires such an order [for a defense witness]."). See U.S. Department of Justice, UNITED STATES ATTORNEY'S MANUAL § 9-23.214 (1997) ("As a matter of policy, 18 U.S.C. §6002 will not be used to compel the production of testimony or other information on behalf of a defendant except in extraordinary circumstances where the defendant plainly would be deprived of a fair trial without such testimony or other information.").
10. Roald Y. Mykkeltvedt, United States v. Alessio - Due Process of Law and Federal Grants of Witness Immunity for Defense Witnesses, 31 MERCER L. REV. 689, 693 (1980) ("Predictably, the government has never determined that the public interest requires such an order [for a defense witness]."). See U.S. Department of Justice, UNITED STATES ATTORNEY'S MANUAL § 9-23.214 (1997) ("As a matter of policy, 18 U.S.C. §6002 will not be used to compel the production of testimony or other information on behalf of a defendant except in extraordinary circumstances where the defendant plainly would be deprived of a fair trial without such testimony or other information.").
11. See, e.g., United States v. Talley, 164 F.3d 989, 997 (6th Cir. ) ("We have consistently held that a district court is without authority to either grant immunity to a witness who asserts his Fifth Amendment privilege against self-incrimination, or to force the government to do so."), cert. denied, 119 S. Ct. 1793 (1999) ; United States v. Perkins, 138 F.3d 422, 424 (D.C. Cir. 1998) ("[W]e have repeatedly rejected claims of judicial authority to grant such immunity."); United States v. Stewart, 122 F.3d 625, 627 (8th Cir. 1997) ("The district court did not have the authority to grant. . . immunity because this court has consistently refused to recognize the concept of judicial immunity."). The very narrow circumstances which some courts have recognized as possibly appropriate for a judicial grant of use immunity to a defense witness are discussed infra Part V. The United States Supreme Court has not ruled on the constitutional issues presented by defense witness immunity requests in a criminal case. See Pillsbury Co. v. Conboy, 459 U.S. 248, 270 n.4 (1983) (Marshall, J., concurring) ("[T]his Court has not yet spoken as to the circumstances under which a trial court in a criminal case may compel a defense witness to testify concerning questions as to which he had previously testified before the grand jury or may compel the Government to secure such a witness' testimony by granting him immunity.").
12. E.g., Talley, 164 F.3d at 997 ("We have explicitly noted that compelled judicial use immunity would raise separation of powers concerns, because the decision of whom to prosecute is soundly within the discretion of the prosecutor, not the courts."); United States v. Turkish, 623 F.2d 769, 776 (2d Cir. 1980) (noting court must assess effect of judicial grant of use immunity on Executive Branch), cert. denied, 449 U.S. 1077 (1981); United States v. Alessio, 528 F.2d 1079, 1081-82 (9th Cir.) (noting defense ability to demand defense witness immunity unacceptably alters Executive Branch role in criminal prosecution), cert. denied, 426 U.S. 948 (1976).
13. United States v. Hunter, 672 F.2d 815, 818 (10th Cir. 1982) (stating "use immunity is a creature of statute "); United States v. Allstate Mortgage Corp., 507 F.2d 492, 494-95 (7th Cir. 1974) (stating Congress, not courts, determines who may grant immunity), cert. denied, 421 U.S. 999 (1975); Earl v. United States, 361 F.2d 531, 534 (D.C. Cir. 1966) (asserting power to grant immunity is that of Congress, and "[tjhis power is not inherent in the Executive and surely is not inherent in the judiciary"), cert. denied, 388 U.S. 921 (1967).
14. Mistretta v. United States, 488 U.S. 361, 411 (1989) (footnote omitted).
15. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
16. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
17. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
18. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
19. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
20. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
21. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
22. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
23. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
24. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
25. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
26. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
27. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
28. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory
29. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
30. The principal purpose of this Article is to reexamine the separation of powers issues involved, with the hope that the analysis will shed new light on the proper resolution of questions involving defense requests for witness immunity. Many commentators have addressed the issue of a criminal defendant's constitutional right to witness immunity, and have concluded that the courts should recognize such a right in some circumstances. See, e.g., AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 134-35 (1997) (discussing arguments for defense right to compel defense witness immunity); Alexander J. Menza, Witness Immunity: Unconstitutional, Unfair; Unconscionable, 9 SETON HALL CONST. L.J. 505, 507 (1999) (suggesting immunity statutes are unconstitutional); Richard A. Nagareda, Reconceiving the Right to Present Witnesses, 97 MICH. L. REV. 1063, 1105-07 (1999) (explaining Compulsory Process Clause guarantees defense same compulsion techniques as prosecution to obtain witnesses); Louis M. Natali, Jr., Does a Criminal Defendant Have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity?, 30 VILL. L. REV. 1501, 1517-30 (1985) (discussing court ability to create use immunity); Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 73, 166-70 (1974) (discussing purpose of Compulsory Process Clause and its role in compelling defense witness testimony); Welsh S. White, Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence, 80 J. CRIM. L. & CRIMINOLOGY 377, 407-13 (1989) (asserting principle of evenhandedness requires courts to grant defense witness immunity); Rita Werner Gordon, Comment, Right to Immunity for Defense Witnesses, 20 CONN. L. REV. 153, 155 (1987) (developing constitutional bases for defense witness immunity); Roderick R. Ingram, Note, A Clash of Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in Criminal Trials, 5 WM. & MARY BILL RTS. J. 299, 301 (1996) (concluding defense witnesses giving exculpatory testimony should be granted immunity); Donald Koblitz, Note, The Public Has a Claim to Every Man's Evidence: The Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211, 1214 (1978) (asserting defendant's constitutional right to obtain exculpatory evidence); Sheila A. Lamont, Note, Balancing the Interests Involved in Granting Defense Immunity, 45 ALB. L. REV. 801, 807 (1981) (discussing whether and when judiciary may interfere with statutory immunity); Robin Deborah Mass, Note, Witness for the Defense: A Right to Immunity, 34 VAND. L. REV. 1665, 1670 (1981) (evaluating constitutional bases for defense witness immunity); Helen M. McCue, Note, Separation of Powers and Defense Witness Immunity, 66 GEO. L.J. 51, 55 (1977) (examining court's role in granting defense witness immunity); Barbara A. Reeves, Note, A ReExamination of Defense Witness Immunity: A New Use For Kastigar, 10 HARV. J. ON LEGIS. 74, 77 (1972) (concluding due process constitutionally requires defense witness immunity); Wayne Alan Weiner, Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C. L. REV. 299, 301 (1981) (examining due process problems arising from defense inability to compel witness immunity). A few articles have concluded generally that the courts correctly have rejected defense claims for witness immunity. See, e.g., James F. Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NOTRE DAME LAWYER 447, 448 (1981) (rejecting assertions that court-ordered immunity is required by Compulsory Process Clause or Due Process Clause); Richard L. Stone, Note, The Case Against a Right to Defense Witness Immunity, 83 COLUM. L. REV. 139, 141 (1983) (concluding prosecutor decisions granting defense witness immunity reviewable only upon showing of bad faith).
31. See, e.g., Quinn v. United States, 349 U.S. 155, 161 (1955) ("As early as 1650, remembrance of the horror of Star Chamber proceedings a decade before had firmly established the privilege in the common law of England."); LEONARD W. LEVY, ORIGINS OF THE FIFTH AMENDMENT 221, 271-76 (1986) (describing Star Chamber treatment of defendant who refused to testify against himself).
32. The Fifth Amendment provides in pertinent part: "No person shall be . . . compelled in any criminal case to be a witness against himself. . . ." U.S. CONST, amend. V.
33. See, e.g., MARK BERGER, TAKING THE FIFTH 66-67 (1980) (describing eighteenth-century English and American immunity statutes).
34. See, e.g., G. Robert Blakely, Aspects of the Evidence Gathering Process in Organized Crime Cases: A Preliminary Analysis, in PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: ORGANIZED CRIME 86 (1967) (discussing first English use of immunization to compel testimony); Mass, supra note 14, at 1665 (discussing origins of government power to compel testimony).
35. See, e.g., Queen v. Boyes, 121 Eng. Rep. 730, 738 (Q.B. 1861) (limiting privilege to where danger of self- incrimination is real and appreciable); Rex v. Rudd, 98 Eng. Rep. 1114, 1116-17 (K.B. 1775) (staying prosecution of Crown witness).
36. See, e.g., BERGER, supra note 17, at 66-67 (describing first English immunity act); Note, The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope, 72 YALE L.J. 1568, 1571 n.13 (1962) [hereinafter Constitutional Tightrope] (same).
37. The Constitution provides in pertinent part: "The President shall. . . have [p]ower to grant [r]eprieves and [pjardons for [o]ffences against the United States, except in [c]ases of [i]mpeachment." U.S. CONST, art. II, § 2. Part of the purpose for giving the President the constitutional power to pardon may have been to provide a vehicle for forcing reluctant witnesses to testify. See Flanagan, supra note 14, at 463 (arguing immunity is necessary tool of executive's criminal law enforcement power).
38. Blakely, supra note 18, at 86. See also United States v. Burr (In re Willie), 25 F. Cas. 38, 40 (C.C.D. Va. 1807) (compelling witness to testify against Burr).
39. 99 U.S. 594 (1878).
40. Whiskey Cases, 99 U.S. at 595.
41. Id. at 606.
42. Id.
43. See Mass, supra note 14, at 1667-68 (stating executive pardon is not used as means of compelling testimony because it may be refused).
44. Id.
45. 236 U.S. 79 (1915).
46. Burdick, 236 U.S. at 86-87.
47. Id, at 94.
48. Id.
49. Id at 94-95.
50. See, e.g., State v. Quarles, 13 Ark. 307, 308 (1853) (applying immunity statute); Higdon v. Heard, 14 Ga. 255, 255 (1853) (applying statute compelling testimony in gambling cases); Henry Emery's Case, 107 Mass. 172, 185 (1871) (finding immunity statute granted inadequate protection).
51. Act of Jan. 24, 1857, ch. 19, 11 Stat. 155 (1859).
52. See Constitutional Tightrope, supra note 20, at 1571 (describing impetus for 1857 Act).
53. See, e.g., H. REP. No. 2606, 83d Cong., 2d Sess. (1954), reprinted in 1954 U.S.C.C.A.N. at 3064 (discussing effect of 1857 statute); BERGER, supra note 17, at 67-68 (asserting transactional immunity statute easily abused).
54. See, e.g., Blakely, supra note 18, at 86 (describing 1862 statute's limited grant of immunity); Howard R. Sklamburg, Investigation Versus Prosecution: The Constitutional Limits on Congress's Power to Immunize Witnesses, 78 N.C. L. REV. 153, 158-59 (1999);.
55. Blakely, supra note 18, at 86.
56. See Mass, supra note 14, at 1673-75.
57. See infra notes 94-105 and accompanying text for a discussion of Kastigar v. United States, 406 U.S. 441 (1972).
58. 142 U.S. 547 (1892).
59. Counselman, 142 U.S. at 560-62.
60. In re Counselman, 44 F. 268, 269-71 (C.C.N.D. 111. 1890), rev'd, Counselman v. Hitchcock, 142 U.S. 547 (1892).
61. Counselman, 142 U.S. at 585-86. The Counselman decision requiring transactional immunity in return for compelled testimony was not binding on the states until 1964. Before that year, the states could provide less protection because the Fifth Amendment protection against self incrimination was not held to be binding on the states until Malloy v. Hogan, 378 U.S. 1 (1964). See, e.g., Commonwealth v. Haines, 90 A.2d 842, 845 (Pa. Super. Ct. 1952) (asserting Fifth Amendment prohibition against self-incrimination not obligatory upon states).
62. Counselman, 142 U.S. at 585-86.
63. 161 U.S. 591 (1896).
64. Brown, 161 U.S. at 593-94, 609-10.
65. Id. at 599-606. Over the years, only a few Justices have dissented from this now firmly entrenched proposition that the Fifth Amendment does not provide an absolute right to complete silence concerning potentially self-incriminating matters. See, e.g., Piccirillo v. New York, 400 U.S. 548, 562 (1971) (Brennan, J., dissenting) (arguing Fifth Amendment requires absolute immunity when witness is compelled to testify against himself); Ullmann v. United States, 350 U.S. 422, 440 (1956) (Douglas, J., dissenting) (arguing right against self-incrimination is beyond reach of Congress).
66. Brown, 161 U.S. at 599-606. See also The Laura, 114 U.S. 411, 417 (1885) (upholding constitutionality of statute providing that Secretary of Treasury could remit certain penalties and forfeitures).
67. Brown, 161 U.S. at 638 (Field, J., dissenting). See also SMITH, DIGEST OF PRECEDENTS OF PRIVILEGES OF CONGRESS 558-62 (1894) (questioning whether immunity statutes violate pardoning power of Executive Branch in minority report of 44th Congress committee of 1876).
68. See Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Brennan, J., dissenting) (noting over forty congressional grants of immunity since Counselman were all transactional with three exceptions); Constitutional Tightrope, supra note 20, at 1574-76 (outlining expansion of immunity statutes in first half of twentieth century).
69. See, e.g., Constitutional Tightrope, supra note 20, at 1576 (citing Justice Department pressure for bill conditioning immunity grants on Attorney General's approval); Robert G. Dixon, Jr., The Doctrine of Separation of Powers and Federal Immunity Statutes, 23 GEO. WASH. L. REV. 501, 505-08 (1955) (describing pre-1954 statutes giving interrogator sole discretion to grant immunity).
70. See, e.g., Adams v. Maryland, 347 U.S. 179, 181 (1954) (holding statute provided immunity when witness testified in response to subpoena, even though witness made no claim of privilege); United States v. Monia, 317 U.S. 424, 430 (1943) (same).
71. See, e.g., Monia, 317 U.S. at 429-30 (referencing 1933 Act requiring assertion of privilege); Dixon, supra note 53, at 506 (describing statutes conferring immunity where interrogator overrides valid claim of privilege).
72. See, e.g., Monia, 317 U.S. at 434 (Frankfurter, J., dissenting) ("Indeed so sensitive has Congress been against immunizing crime that it has not entrusted prosecutors generally with the power to relieve witnesses from prosecution in exchange for incriminating evidence against others."); U.S. President's Commission on Law Enforcement and Administration of Justice, THE CHALLENGE OF CRIME IN A FREE SOCIETY: A REPORT BY THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE 140, 141 (1967) [hereinafter PRESIDENT'S COMMISSION] (recommending general witness immunity statute be enacted to provide sufficiently broad immunity to ensure compulsion of testimony).
73. See, e.g., Flanagan, supra note 14, at 468 (concluding generally that courts correctly have rejected defense claims for witness immunity); O. John Rogge, The New Federal Immunity Act and the Judicial Function, 45 CAL. L. REV. 109, 127 (1957) (noting no statutory immunity provisions required court approval of immunity prior to enactment of 1954 Federal Immunity Act).
74. See Constitutional Tightrope, supra note 20, at 1576-77 (discussing political atmosphere in which 1954 Act passed).
75. See H. REP. No. 2606, supra note 37, at 3064 ("That such an evil [like the immunity bath that occurred with the 1857 Act] must be avoided at all costs is self-evident.").
76. 18 U.S.C. § 3486 (Supp. IV 1964), repealed by Pub. L. 91-452, tit. II, § 228(a), Oct. 15, 1970, 84 Stat. 930 (providing for immunity grants before Congress and during grand jury trial proceedings).
77. Id. § 3486 (a), (b).
78. Id. § 3486(b).
79. Id.
80. Id.
81. There was scholarly criticism of these sections of the 1954 Act. The primary contention was that they should be held unconstitutional on separation of powers grounds because the judiciary should have no constitutional role in reviewing actions of the other branches of the government in the absence of a case or controversy. See, e.g., Dixon, supra note 53, at 531-32 (concluding judicial grant of immunity cannot be "case" under Constitution); Rogge, supra note 57, at 132-33 (concluding 1954 Federal Immunity Act burdened federal courts with "non-judicial function" and thereby violated Constitution); Comment, Immunization of Congressional Witnesses Under the Compulsory Testimony Act: Constitutionality of the Function of the District Courts, 22 U. QHI. L. REV. 657, 671 (1955) (arguing immunity procedures represent defiance of principle of separation of powers).
82. Section (c) of 18 U.S.C. § 3486 provided as follows: (c) Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury or court of the United States involving. . . any interference with or endangering of, or any plans or attempts to interfere with or endanger, the national security or defense of the United States by treason, sabotage, espionage, sedition, seditious conspiracy, violations of chapter 115 of title 18 of the United States Code, . . . violations of the Atomic Energy Act of 1946 (60 Stat. 755), as amended, violations of sections 212(a) (27), (28), (29), or 241 (a) (6)[,] (7) or 313 (a) of the Immigration and Nationality Act (66 Stat. 182-186; 204-206; 240-241), and conspiracies involving any of the foregoing, is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in subsection (d) hereof) against him in any court. 18 U.S.C. § 3486(c) (Supp. IV 1964).
83. Id.
84. 350 U.S. 422 (1956).
85. Ullmann, 350 U.S. at 426 ("Assuming that the statutory requirements are met, does the Act give the district judge discretion to deny an application for an order requiring a witness to answer relevant questions put by the grand jury . . . ?").
86. Id. at 424.
87. Id. at 424-25.
88. Id.
89. Id. at 423-25.
90. Ullmann, 350 U.S. at 436-39.
91. Id. at 431.
92. Id. at 433.
93. Id. at 434.
94. Id. at 432-33.
95. See 18 U.S.C. § 3486(c), supra note 66 (stating prosecutor "shall make application to the court"). See, e.g., H. REP. No. 2606, supra note 37, at 3065 ("In all cases where the bill authorizes a grant of immunity after privilege has been claimed, there are at least two other independent but interested parties [Attorney General and district court] who must concur in the grant of immunity in order to meet the requirements of the bill."); Dixon, supra note 53, at 507 (noting judicial order provision "reflects continued concern about 'immunity baths' and is intended as a further safeguard"); Rogge, supra note 57, at 129 ("Such a strained construction reduces the quoted portion of paragraph (c) to an embellishment which served no other purpose than that of deceiving Congress.").
96. Ullmann, 350 U.S. at 433 (adopting district court's interpretation of statute).
97. 18 U.S.C. §§ 6002-6003 (1995). See supra note 6 for the text of the statute.
98. See supra notes 60-67 and accompanying text for a discussion of the 1954 Act.
99. 18 U.S.C. § 6002.
100. Id. § 6003.
101. See, e.g., Robert G. Dixon, Comment on Immunity Provisions, in WORKING PAPERS OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS 1418, 1434-36 (1970) (questioning utility of court order requirement in grants of immunity). See also PRESIDENT'S COMMISSION, supra note 56, at 140-41 (recommending general immunity statute in which Attorney General makes decision whether to grant immunity and subsequently files notice in court when immunity is granted).
102. Dixon, supra note 85, at 1434.
103. See H. REP. No. 91-1549 (1970), reprinted in U.S.C.C.A.N. 4007, 4018 ("The court's role in granting the order is merely to find the facts on which the order is predicated."); United States v. Doe, 465 U.S. 605, 616-17 (1984) ("Congress expressly left [this decision to seek immunity] exclusively to the Justice Department."); Pillsbury Co. v. Conboy, 459 U.S. 248, 253-54 & n.11 (1983) (plurality opinion) (recognizing Congress gave Department of Justice, and not courts, authority to grant immunity).
104. See Blakely, supra note 18, at 86 (stating that requirement of court approval lessens danger of hidden immunization of friends); Dixon, supra note 85, at 1435-36 (discussing situation where federal district court could find sufficient reserve authority to deny request for immunity).
105. 18 U.S.C. § 3486(c) (Supp. IV 1964). See supra note 66 for the text of section 3486(c).
106. 18 U.S.C. § 6003 (1995). See supra note 6 for the text of section 6003.
107. 18 U.S.C. §§ 6001-6005 (1985).
108. See, e.g., Wong Sun v. United States, 371 U.S. 471, 487 (1963) (holding evidence tainted as fruit of initial Fourth Amendment violations, and not derived sufficiently independently, has to be suppressed); Mapp v. Ohio, 367 U.S. 643, 657 (1961) (holding required remedy for illegally seized evidence in violation of Fourth Amendment is exclusion of evidence at criminal trial); Murphy v. Waterfront Comm'n, 378 U.S. 52,77-78 (1964) (holding witness is entitled to constitutional protection with respect to federal prosecution when state grants transactional immunity in return for compelled testimony otherwise privileged under Fifth Amendment); Dixon, supra note 85, 1422-31 (discussing concept of use restrictions as essential requirement imposed by Fifth Amendment and proper test of valid immunity statute). The Murphy Court, however, did not hold that the Fifth Amendment required transactional immunity protection from a federal prosecution. Murphy, 378 U.S. at 79. Instead, it held that the federal government could not use the state compelled testimony or any fruits of that testimony, and that if the federal government prosecuted the witness, it would have the burden of establishing that the evidence was independently derived from the compelled testimony. Id. at 79 n.18. Because the Murphy Court concluded that other jurisdictions need only give use and derivative use immunity after one jurisdiction provided the witness with transactional immunity, the decision afforded the basis for a contention that the Fifth Amendment might not require transactional immunity. Id. at 77-78.
109. 18 U.S.C. § 6002(3) (1995). See supra note 6 for the text of the statute.
110. 406 U.S. 441 (1972).
111. Kastigar, 406 U.S. at 442.
112. Id. at 447 (quoting Ullmann v. Unites States, 350 U.S. 422, 438 (1956)).
113. Id. at 448 (reaffirming Brown v. Walker, 161 U.S. 591 (1896), and Ullmann v. Unites States, 350 U.S. 422 (1956)).
114. Before Murphy, the Court had stated several times its understanding that transactional immunity was required. See, e.g., Ullmann v. Unites States, 350 U.S. 422, 430-31 (1956) (recognizing Fifth Amendment protection ceases to apply because immunity removes criminality); Adams v. Maryland, 347 U.S. 179, 182 (1954) (interpreting immunity narrowly in accordance with historical congressional intent to compel incriminating testimony); Smith v. United States, 337 U.S. 137, 145-48 (1949) (discussing evolution of congressional policy in dealing with immunity in context of Supreme Court precedent); United States v. Monia, 317 U.S. 424, 428 (1943) (recognizing Supreme Court precedent "indicated clearly that nothing short of absolute immunity would justify compelling the witness to testify if he claimed his privilege"); Brown v. Walker, 161 U.S. 591, 610 (1896) (holding immunity statute compelling testimony did not violate Fifth Amendment's privilege); Counselman v. Hitchcock, 142 U.S. 547, 585-86 (1892) (concluding only absolute immunity against future prosecution would satisfy constitutional protections). Murphy, however, strongly suggested that less protection may suffice under the Fifth Amendment. Murphy, 378 U.S. at 77-78. See supra note 92 for the holding in Murphy.
115. Kastigar v. United States, 406 U.S. 441, 453-55 (1972).
116. Id. at 462.
117. Id. at 458-59.
118. Id. at 462.
119. Most courts have held that Kastigar does not prohibit prosecutors from using compelled testimony for some non-evidentiary purposes, such as the decision whether to plea bargain. See, e.g., United States v. Serrano, 870 F.2d 1,17 (1st Cir. 1989) (rejecting notion that all non-evidentiary use of immunized testimony violates Fifth Amendment). Cf. United States v. Hubbell, 2000 U.S. LEXIS 3768, 68 U.S.L.W. 4449 (June 5, 2000) (holding documents obtained through immunity grant may not be used to secure indictment). Commentators have been critical of the Kastigar holding. See, e.g., Jeffrey M. Feldman & Stuart A. Ollanik, Compelling Testimony in Alaska: The Coming Rejection of Use and Derivative Use Immunity, 3 ALASKA L. REV. 229, 250-54 (1986) (criticizing Kastigar holding as potentially perpetuating non-evidentiary abuses of compelled testimony);
120. Kristine Strachan, Self-Incrimination, Immunity, and Watergate, 56 TEX. L. REV. 791,807-10 (1978) (same). Some state courts have held that their state constitutions require a grant of transactional immunity before testimony may be compelled. See, e.g., State v. Gonzalez, 853 P.2d 526, 532 (Alaska 1993) (construing state constitutional guarantees as requiring transactional immunity in exchange for compelled testimony); State v. Miyasaki, 614 P.2d 915, 924 (Haw. 1980) (concluding problems would not arise with grant of transactional immunity); Attorney Gen. v. Colleton, 444 N.E.2d 915, 921 (Mass. 1982) (holding only grant of transactional immunity would supplant protection against self-incrimination required by state constitution); Wright v. McAdory, 536 So.2d 897, 903-04 (Miss. 1988) (requiring transactional immunity in accordance with state constitutional protections); State v. Soriano, 684 P.2d 1220, 1232 (Or. Ct. App. 1984) (concluding only transactional immunity is permissible under state constitution), affd, 693 P.2d 26 (Or. 1984).
121. Kastigar, 406 U.S. at 460 (imposing affirmative duty on prosecution to prove evidence derived from legitimate source independent of compelled testimony).
122. Id. at 459-62.
123. United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982), quoted in Wayte v. United States, 470 U.S. 598, 607 (1985)). See infra notes 146-49 and accompanying text for a discussion of Armstrong.
124. U.S. CONST, art. II, § 3.
125. Id.
126. See, e.g., United States v. Batchelder, 442 U.S. 114, 123-26 (1979) (holding no constitutional violation occurs where prosecutor chooses which offense to charge and there are two which are very similar except that one has much more severe penalty).
127. Armstrong, 517 U.S. at 465.
128. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995) (holding retroactive reopening of final judgments of judiciary is prohibited); Ex Parte Garland, 71 U.S. 333, 380 (1866) (holding exercise of pardoning power by President cannot be limited or interfered with in any way).
129. Loving v. United States, 517 U.S. 748, 757 (1996).
130. See, e.g., Morrison v. Olson, 487 U.S. 654, 659-60 (1988) (upholding constitutionality of independent counsel statute against claim that it was congressional usurpation of an Executive Branch function); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 797-801 (1987) (holding court has authority to initiate prosecution for criminal contempt, thereby rejecting constitutional claim that it abridges authority of Executive Branch).
131. Id.
132. Id.
133. See supra notes 52-56 and accompanying text for a discussion of these congressional immunity statutes.
134. See supra notes 52-56 and accompanying text for a discussion of these congressional immunity statutes.
135. See supra Part I for a discussion of Congress's power to grant immunity.
136. In United States v. Doe, 465 U.S. 605 (1984), the Court held that the government could not enforce grand jury subpoenas for production of materials where the act of production was protected by the Fifth Amendment, even if it offered not to use the act of production in any way against the witness. Doe, 465 U.S. at 614-17. The Court concluded that immunity could not be informally offered or granted by a court under those circumstances. Id. Immunity was only available to the government through a formal application pursuant to the statutory framework of the 1970 Immunity Act. Id. Generally, state courts have also refused to acknowledge an informal immunity power on the part of prosecutors, holding that immunity is a creature of the legislature. See, e.g., Bowie v. State, 287 A.2d 782, 787 (Md. Ct. Spec. App. 1972) ("[I]t is universally recognized that, absent a statutory grant of power, the prosecuting attorney is not entitled. . . to confer immunity upon a witness."); Apodaca v. Viramontes, 212 P.2d 425, 429 (N. Mex. 1949) (stating that, with exception of some Texas decisions, court found no decisions in other states that upheld "the power of the prosecuting officer and the court. . . to grant immunity. . . in the absence of express constitutional or statutory authority").
137. Id.
138. See, e.g., Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 281-83 (1989) (stating neither Executive nor Legislative Branches are given full control over law enforcement under United States Constitution).
139. Id.
140. The courts have consistently held that the separation of powers doctrine prohibits courts from forcing the government to initiate a criminal prosecution. See, e.g., Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 383 (2d Cir. 1973) (holding courts may not review prosecutorial discretion, absent egregious constitutional violations); United States v. Cox, 342 F.2d 167, 172 (5th Cir. 1965) (stating decision to sign indictment is executive one, not subject to judicial review, because indictment requires signature of government attorney), cert. denied sub nom., Cox v. Hauberg, 381 U.S. 935 (1965).
141. See, e.g., United States v. Smith, 55 F3d 157, 158-59 (4th Cir. 1995) (stating court may review government's motion to dismiss); United States v. Cowan, 524 F.2d 504, 512-13 (5th Cir. 1975) (stating Executive Branch powers are not violated by court deciding whether public interest would be violated by granting government motion to dismiss charges), cert. denied sub nom., Woodruff v. United States, 425 U.S. 971 (1976).
142. See, e.g., Strunk v. United States, 412 U.S. 434, 440 (1973) (holding dismissal of charges with prejudice is required remedy for finding speedy trial violation).
143. See, e.g., Benton v. Maryland, 395 U.S. 784, 796-97 (1969) (stating Double Jeopardy Clause protection, where applicable, prohibits second trial).
144. Even in the absence of a constitutional violation, courts possess limited inherent supervisory authority to do justice in criminal cases. See generally United States v. Hasting, 461 U.S. 499, 505 (1983) (recognizing federal courts' power to create procedural rules that are not required by Constitution or Congress). See, e.g., United States v. Paiva, 294 F. Supp. 742, 747 (D.D.C. 1969) (finding absence of constitutional impingement on Executive Branch when court exercises supervisory authority to dismiss indictment because government failed to keep its part of agreement with defendant). The scope of this power is not entirely clear, but it does have some definite limits. See, e.g., Degen v. United States, 517 U.S. 820, 823-24, 829 (1996) ("[C]ourt's inherent power is limited by the necessity giving rise to its exercise."); Carlisle v. United States, 517 U.S. 416, 425-26 (1996) (stating court may not go against rules of criminal procedure).
145. 404 U.S. 307 (1971).
146. Marion, 404 U.S. at 320-21.
147. Id.
148. Id. at 325-26.
149. Id. at 322 (quoting United States v. Ewell, 383 U.S. 116, 122 (1966)).
150. Id. at 324.
151. Marion, 404 U.S. at 324.
152. 431 U.S. 783 (1977).
153. In Lovasco, the Court emphasized that the government has great leeway to decide when to conclude its investigation and bring charges. A due process violation, however, could be established by showing trial prejudice and that the government delay was at least in reckless disregard of known circumstances concerning the defendant's ability to effectively defend himself. Lovasco, 431 U.S. at 795 n.17.
154. Id. at 796.
155. 470 U.S. 598 (1985).
156. Wyate, 470 U.S. at 603.
157. Id.
158. Id. at 604.
159. Id.
160. Id. at 608.
161. Wayte, 470 U.S. at 607-11.
162. Id. at 608 (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)).
163. 517 U.S. 456 (1996).
164. Armstrong, 517 U.S. at 465.
165. Id.
166. Id. at 464 (quoting Batchelder, 442 U.S. at 125). At least in one instance, the Court has held that the prosecutor violated due process by bringing a criminal charge. In Blackledge v. Perry, 417 U.S. 21 (1974), the Court held that, in a two-tiered trial de novo system, the state had violated due process by adding a felony charge when the defendant exercised his statutory right to appeal and have a trial de novo following his initial conviction. Blackledge, 417 U.S. at 28-31.
167. See supra notes 113-49 and accompanying text for a discussion of the limits of prosecutorial discretion.
168. See supra notes 113-37 and accompanying text for a discussion of the limits courts impose on prosecutorial discretion in order to ensure fairness at trial.
169. 458 U.S. 858 (1982).
170. Valenzuela-Bernal, 458 U.S. at 865.
171. Id. at 860-61.
172. Id. at 860.
173. Id. at 861.
174. Id.
175. Valenzuela-Bernal, 458 U.S. at 863-66.
176. Id. at 867.
177. Id. at 872-74.
178. Id. at 876 (O'Connor, J., concurring) (quoting U.S. CONST., art. II, § 3, and citing Lisenba v. California, 314 U.S. 219, 236 (1941)).
179. See supra notes 124-61 for a discussion of the facts of cases dealing with the limits on prosecutorial discretion.
180. See supra notes 124-61 for a discussion of the facts of cases dealing with the limits on prosecutorial discretion.
181. See, e.g., Smith v. Meese, 821 F.2d 1484, 1490 (11th Cir. 1987) ("In considering the separation of powers[,]. . . we start with the proposition that there is nothing inherent in the prosecutorial function that would suggest insulating prosecutorial policies from judicial review."); Sarah J. Cox, Prosecutorial Discretion: An Overview, 13 AM. CRIM. L. REV. 383, 397 (1976) ("Acceptance of some judicial review [of prosecutorial discretion] results in an interpretation of separation of powers more consistent with its original intent. . . .").
182. See supra notes 124-61 for a discussion of the possibilities for judicial examination of prosecutorial discretion.
183. See supra notes 124-61 for a discussion of the possibilities for judicial examination of prosecutorial discretion.
184. The Necessary and Proper Clause gives Congress the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. CONST, art. I, § 8, ci. 18.
185. See Ullmann v. United States, 350 U.S. 422, 435-36 (1956) (finding concern of Congress with national security as basis for Immunity Act of 1954, and Necessary and Proper Clause gives Congress the power to forbid state to prosecute when there is federal grant of immunity); Adams v. Maryland, 347 U.S. 179, 183 (1954) (holding Necessary and Proper Clause provides Congress with power to provide by statute for immunity from state prosecution for witnesses who testify under grants of immunity before Congress and its committees). See also Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50,83 n. 35 (1982) ("[W]here Congress creates a substantive right, pursuant to one of its broad powers to make laws, Congress may have something to say about the proper manner of adjudicating that right.").
186. U.S. CONST, art. I, § 8, cl. 9.
187. Act of Sept. 24, 1789, ch. 20, 1 Stat. 73.
188. See, e.g., Hanna v. Plumer, 380 U.S. 460, 472 (1965) (affirming Congress has "power to make rules governing the practice and pleading" in federal courts); Sibbach v. Wilson & Co., 312 U.S. 1, 9 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts."); Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 64 (1825) (same); Wayman v. Southard, 23 U.S. (10 Wheat.) 22, 43 (1825) (same). It is this constitutional power which provided Congress with the authority to promulgate the Federal Rules of Evidence.
189. See, e.g., Nudd v. Burrows, 91 U.S. 426, 442 (1875) ("There are certain [practice and procedure] powers inherent in the judicial office."); Hanna, 380 U.S. at 472-73 (discussing Congress's power to create rules governing "practice and pleading" in federal courts). See also McNabb v. United States, 318 U.S. 332, 340 (1943) (stating Supreme Court's "[j]udicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence"). See generally A. Leo Levin and Anthony G. Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. PA. L. REV. 1 (1958) (considering proper role of legislature in control of court rules and procedures); Michael M. Martin, Inherent Judicial Power: Flexibility Congress Did Not Write into the Federal Rules of Evidence, 57 TEX. L. REV. 167 (1979) (discussing limitations placed by Congress on federal courts' power to admit evidence).
190. See, e.g., Nudd v. Burrows, 91 U.S. 426, 442 (1875) ("There are certain [practice and procedure] powers inherent in the judicial office."); Hanna, 380 U.S. at 472-73 (discussing Congress's power to create rules governing "practice and pleading" in federal courts). See also McNabb v. United States, 318 U.S. 332, 340 (1943) (stating Supreme Court's "[j]udicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence"). See generally A. Leo Levin and Anthony G. Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. PA. L. REV. 1 (1958) (considering proper role of legislature in control of court rules and procedures); Michael M. Martin, Inherent Judicial Power: Flexibility Congress Did Not Write into the Federal Rules of Evidence, 57 TEX. L. REV. 167 (1979) (discussing limitations placed by Congress on federal courts' power to admit evidence).
191. See, e.g., Degen v. United States, 517 U.S. 820, 823 (1996) ("In many instances the inherent powers of the courts may be controlled or overridden by statute or rule."); Mistretta v. United States, 488 U.S. 361, 385-88 (1989) (explaining Congress has authority to regulate procedure in courts and power to delegate same authority to courts).
192. For example, in United States v. Salerno, 505 U.S. 317 (1992), the defendants argued that Rule 804(b)(1) of the Federal Rules of Evidence, the prior testimony hearsay exception, should be interpreted consistently with "adversarial fairness" to permit the admission of certain prior testimony. Salerno, 505 U.S. at 321 (interpreting FED. R. EVID. 804(b)(1)). The claim was that the government had an unfair advantage based on use of its immunity power for witnesses. Id. at 323-24. The Court held it had no power to consider such arguments unsupported by the language of the rule enacted by Congress. Id. at 324. The Court stated that "we must enforce the words that [Congress] enacted." Id. at 322. See also United States v. Hyde, 520 U.S. 670, 678 n.3 (1997) ("[O]ur task here is not to act as policymaker, deciding how to make the Rules [of Criminal Procedure] as fair as possible, but rather to determine what the Rules actually provide.").
193. 353 U.S. 657 (1957).
194. 360 U.S. 343 (1959).
195. Palermo, 360 U.S. at 345.
196. Id. at 347-48.
197. 356 U.S. 129 (1958).
198. 8 U.S.C. § 1481(c).
199. 444 U.S. 252 (1980).
200. Vance, 444 U.S. at 265.
201. Id.
202. Id. at 265-66.
203. Id. at 266.
204. E.g., In re Winship, 397 U.S. 358, 364 (1970).
205. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) ("Let the end be legitimate . . . and all means [are constitutional] which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution") (footnote omitted); David E. Engdahl, Intrinsic Limits of Congress' Power Regarding the Judicial Branch, 1999 BYU L. REV. 75, 100-03 (1999) (asserting Necessary and Proper Clause gives Congress authority to assist judiciary in exercise of judicial powers, but not to impede judiciary's exercise of discretion); Gary Lawson and Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interprelation of the Sweeping Clause, 43 DUKE L.J. 267, 297 (1993) ("[E]xecutory laws must be consistent with principles of separation of powers, principles of federalism, and individual rights.").
206. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) ("Let the end be legitimate . . . and all means [are constitutional] which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution") (footnote omitted); David E. Engdahl, Intrinsic Limits of Congress' Power Regarding the Judicial Branch, 1999 BYU L. REV. 75, 100-03 (1999) (asserting Necessary and Proper Clause gives Congress authority to assist judiciary in exercise of judicial powers, but not to impede judiciary's exercise of discretion); Gary Lawson and Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interprelation of the Sweeping Clause, 43 DUKE L.J. 267, 297 (1993) ("[E]xecutory laws must be consistent with principles of separation of powers, principles of federalism, and individual rights.").
207. Alden v. Maine, 119 S. Ct. 2240, 2268 (1999).
208. Hanna v. Plumer, 380 U.S. 460, 464 (1965).
209. Wayman v. Southard, 23 U.S. (10 Wheat.) 22, 46 (1825).
210. U.S. CONST. art. VI.
211. 5 U.S. (1 Cranch) 137 (1803).
212. E.g., City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997) (invalidating Religious Freedom Restoration Act of 1993).
213. See U.S. CONST. amends. V and VI.
214. E.g., Flores, 521 U.S. at 521 (noting Congress has power to enact legislation enforcing constitutional rights but Court has authority to determine when the legislation exceeds Congress's constitutional authority).
215. Compare Doyle v. Ohio, 426 U.S. 610, 618 (1976) (finding due process was violated by fundamental unfairness of state using defendant's silence in response to Miranda warnings as impeachment evidence at trial), with Jenkins v. Anderson, 447 U.S. 231, 240 (1980) (holding impeachment at trial with evidence of defendant's pre-arrest silence before Miranda warnings did not violate due process because practice was not fundamentally unfair). See generally Leonard N. Sosnov, No Mere Error of State Law: When State Appellate Courts Deny Criminal Defendants Due Process, 63 TENN. L. REV. 281, 283-88 (1996) (discussing federal due process protections as applied to state criminal defendants).
216. See, e.g., Clinton v. Jones, 520 U.S. 681, 701 (1997) (holding separation of powers does not require that civil action against President based on alleged activities before his term began be deferred until after he leaves office).
217. U.S. CONST, art. III, § 1 (providing for tenure and salary protections for judges).
218. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58-61 (1982) ("The Federal Judiciary was therefore designed by the Framers to stand independent of the Executive and Legislative Branches - to maintain checks and balances of the constitutional structure, and also to guarantee that the process of adjudication itself remained impartial."). Thus, inherently judicial issues must be decided only by Article III judges, and not other judges designated or created by Congress. Id. In Mistretta v. United States, 488 U.S. 361 (1989), the Court concluded that judges serving on the Sentencing Commission, with a limited removal power by the President, would not "prevent the Judicial Branch from performing its constitutionally assigned function of fairly adjudicating cases and controversies." Mistrella, 488 U.S. at 411 (footnote omitted) (emphasis added); THE FEDERALIST No. 78 (Alexander Hamilton).
219. In United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), a statute required the Court to treat evidence as conclusive in favor of one party, and the Court concluded that the particular ruling would not be in accordance with what it viewed as the constitutionally required correct ruling. Klein, 80 U.S. at 143-48. The Court stated: "[T]he court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary. We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power." Id. at 147.
220. Plaut v. Spendthrift Farm Inc., 115 S. Ct. 1447, 1452-53 (1995) (holding Congress cannot retroactively change final judgments); Hayburn's Case, 1 U.S. (2 Dall.) 409, 409 (1792) (standing for proposition that Executive Branch cannot review judicial decisions).
221. 418 U.S. 683 (1974).
222. Nixon, 418 U.S. at 687.
223. Id. at 686-88.
224. Id. at 697.
225. Id. at 703.
226. Id. at 706.
227. Nixon, 418 U.S. at 706-07.
228. Id. at 712.
229. Id. at 712-13.
230. Id. at 714-16.
231. See Natali, supra note 14, at 1527 (citing Nixon for contention that it is "patently ridiculous to argue that the separation of powers doctrine prevents judicial intervention to preserve and protect constitutional rights").
232. See, e.g., Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1565 (1991) ("The Court's role in cases involving separated powers, no less than in those involving the Bill of Rights, ought to be as vigilant arbiter of process for the purpose of protecting individuals from the dangers of arbitrary government.")
233. See supra notes 94-105 and accompanying text for discussion of Kastigar.
234. For example, see University of Pennsylvania v. E.E.O.C., 493 U.S. 182 (1990), where the Court refused to recognize an academic peer review material privilege, and stated: We do not create and apply an evidentiary privilege unless it "promotes sufficiently important interests to outweigh the need for probative evidence. . . ." Trammel v. United States, 445 U.S. 40, 51 (1980). Inasmuch as "[t]estimonial exclusionary rules and privileges contravene the fundamental principle that 'the public. . . has a right to every man's evidence,'" id.[] at 50, quoting United States v. Bryan, 339 U.S. 323, 331 (1950), any such privilege must "be strictly construed." 445 U.S.[] at 50. University of Pennsylvania, 493 U.S. at 189.
235. See supra Part I for a discussion of legislative efforts to take away Fifth Amendment protections by granting transactional immunity for witnesses without the input of the Executive Branch.
236. See supra Part II for a discussion of the Executive Branch's limitations on the power to enforce criminal law.
237. See Brown, supra note 213, at 1537 n.102 ("It is noteworthy that the Executive's only constitutionally sanctioned power to act in individual cases-the pardon power-can serve only to benefit, not punish individuals.").
238. Whether the criminal defendant would have a possibly valid constitutional claim when defense evidence was excluded would depend on how the particular scheme was construed. See infra Part IV.C for a discussion of the constitutional rights of criminal defendants.
239. Rule 403 of the Federal Rules of Evidence provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
240. See, e.g., Hoffman v. United States, 341 U.S. 479, 486 (1951) (concluding judiciary determines whether valid claim of Fifth Amendment privilege exists).
241. See, e.g., United States v. Zolin, 491 U.S. 554, 565 (1989) (deciding whether crime-fraud exception applies).
242. E.g., id. at 568-70 (concluding complete prohibition against use of in camera review to establish applicability of crime-fraud exception is inconsistent with policies underlying privilege); Pennsylvania v. Ritchie, 480 U.S. 39, 59-61 (1987) (ordering in camera review to determine whether any portion of privileged protection service agency records must be disclosed to defense).
243. See, e.g., Herbert v. Lando, 441 U.S. 153, 169-75 (1979) (balancing interests of editorial process First Amendment privilege and interests of party seeking testimony); Branzburg v. Hayes, 408 U.S. 665, 686-702 (1972) (balancing reporter's confidential source First Amendment privilege and interests of party seeking testimony). A concurring opinion in Herbert observed that "[a]lthough the process of weighing these interests is hardly an exact science, it is a function customarily carried out by judges in this and other areas of the law." Herbert, 441 U.S. at 180 (Powell, J., concurring).
244. See supra notes 87-90 and accompanying text for a discussion of a judge's ability to deny an immunity order requested by the prosecution. Whether immunity can be sought under the statute in a civil case is unclear, and the question is beyond the scope of this Article, which addresses a court's responsibility in a criminal case. See Pillsbury Co. v. Conboy, 459 U.S. 248, 261 n. 20 (1983) (plurality opinion) (stating Court need not decide whether United States Attorneys presently have authority to immunize testimony of witness in civil case when government determines public interest would be served).
245. United States v. Williams, 504 U.S. 36, 47 (1992).
246. Id.
247. See, e.g., Williams, 504 U.S. at 49-51 (noting grand jury decides whether to accuse person of crime and does not conduct trial); Ex Parte Bain, 121 U.S. 1, 10-11 (1887) (stating grand jury serves to protect citizens against unfounded accusations and to bring persons to trial on just grounds).
248. See, e.g., Williams, 504 U.S. at 49 (noting certain constitutional protections granted criminal defendants at trial have no application before grand jury); Conn v. Gabbert, 119 S. Ct. 1292, 1296 (1999) (noting witness has no right to have counsel present in grand jury).
249. DEBORAH DAY EMERSON, GRAND JURY REFORM: A REVIEW OF KEY ISSUES 37 (1983).
250. Williams, 504 U.S. at 55.
251. Id. at 51.
252. Cf. Ohio Adult Parole Auth. v. Woodard, 118 S. Ct. 1244, 1245 (1998) (O'Connor, J., concurring) ("Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency.").
253. Such a statute would violate the criminal defendant's constitutional rights and the Court's Article III duty to declare the statute unconstitutional. See supra notes 176-98 and accompanying text as well as infra Part IV.C for a discussion of a criminal defendant's constitutional rights and the court's duty to declare unconstitutional statutes violating those rights.
254. See, e.g., Kendall v. United States, 37 U.S. 524, 610 (1838) (stating Congress can give executive officers duties, but not those repugnant to Constitution); Hayburn's Case, 1 U.S. (2 Dall.) 409, 411 (1792) (stating Congress cannot give Executive Branch power to revise judicial ruling). See also Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58-59 (1982) (plurality opinion) (asserting Congress may not confer Article III power on Article I judge); cf. Shoemaker v. United States, 147 U.S. 282, 301 (1893) (noting delegating judicial functions to President was not unconstitutional
255. Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (asserting Article III power to decide only cases and controversies requires sufficient interest for party to have standing to bring court action).
256. See, e.g., National Broad. Co. v. United States, 319 U.S. 190, 216-17 (1943) (addressing requirement of "public interest, convenience, or necessity" which Communications Act established as criterion for Federal Communications Commission exercise of power); New York Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25 (1932) (addressing delegation of authority by Interstate Commerce Commission to permit acquisition of control of one railroad by another in "public interest").
257. This, of course, does not mean that a court must have the power to make determinations of admissibility in the public interest with respect to each item of evidence. Congress can, and sometimes does, make the judgment that certain items of evidence are automatically excluded or admissible for valid policy reasons. See, e.g., FED. R. EVID. 609(a)(2) ("[E]vidence that any witness has been convicted of a crime shall be admitted if it involves dishonesty or false statement, regardless of the punishment."). If the rule of law, however, is that there is to be a discretionary "public interest" determination of admissibility, that exercise of discretion is a judicial function.
258. United States v. Reynolds, 345 U.S. 1, 9-10 (1953).
259. Gutierrez De Martinez v. Lamagno, 515 U.S. 417, 428 (1995).
260. Lamagno, 515 U.S. at 428 (quoting THE FEDERALIST No. 10, 79 (Clinton Rossiter ed. 1961)). See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824 (1986) (finding due process violation when judge sat in judgment on case which could benefit judge's own pending case, because "he acted as 'a judge in his own case'"). In Lamagno, the Court had to decide whether a court had the power to review a statutorily provided for finding of the Attorney General whether an employee who was sued under a tort statute was acting within the scope of his employment. Lamagno, 515 U.S. at 422. A negative finding would result in the dismissal of the case against the employee, a result which in some cases would be in the government's interest. Id. The Court construed the statute to provide for judicial reviewability of the Attorney General's decision in part because the alternative "proposed reading would cast Article III judges in the role of petty functionaries, persons required to enter as a court judgment an executive officer's decision, but stripped of capacity to evaluate independently whether the executive's decision is correct." Id. at 426. It concluded that "we adopt the reading that accords with traditional understandings and basic principles that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render." Id. at 434.
261. For example, the Court has held that it violates due process of law to have a mayor serve as a judge of a criminal case when the nature of his position puts him in a partisan role. Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972). See also Tumey v. Ohio, 273 U.S. 510, 531 (1927) (concluding payment of official for services only upon conviction of defendant violates defendant's due process). The Court in Tumey observed that "[e]very procedure which would offer a possible temptation to the average man as a judge to. . . lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." Tumey, 273 U.S. at 532. See also In Interest of McFall, 617 A.2d 707, 710 (Pa. 1992) (finding unacceptable conflict where judge was simultaneously working undercover for prosecutorial authorities).
262. 403 U.S. 443 (1971).
263. CoolidgeK, 403 U.S. at 453.
264. Id. at 450.
265. See, e.g., Stone, supra note 14, at 147 ("In the defense witness immunity context. . . it is the witness, not the state, who prevents the defendant from acquiring valuable testimony through the assertion of the [F]ifth [A]mendment privilege.").
266. The courts consistently have rejected objections to prosecutorial immunity grants based on a claim that immunity for the witness would not be in the public interest. See, e.g., United States v. Ellis, 595 F.2d 154, 163 (3d Cir.) (finding defendants have no standing to dispute propriety of grants of immunity to adverse witnesses), cert. denied, 444 U.S. 838 (1979); United States v. Rauhoff, 525 F.2d 1170, 1178 (7th Cir. 1975) (citing established rule that defendants have no standing to contest grants of immunity to witnesses testifying against them); In re Kilgo, 484 F.2d 1215, 1218-19 (4th Cir. 1973) (stating government need not offer any evidence in support of its assertion that immunity grant is in public interest).
267. 418 U.S. 683 (1974).
268. Nixon, 418 U.S. at 688.
269. This general point was made by the Court in Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998), where it held that lawyer-client privileged communications remain absolutely privileged from disclosure before a grand jury after the death of the client. Swidler &. Berlin, 118 S. Ct. at 20S6. The Court stated: "The Independent Counsel assumes, incorrectly we believe, that the privilege is analogous to the Fifth Amendment's protection against self-incrimination. But as suggested above, the privilege serves much broader purposes." Id. The Court concluded that a posthumous exception to an absolute lawyer-client privilege for grand jury investigations "appears at odds with the goals of encouraging full and frank communication and of protecting the client's interests." Id. at 2087. Likewise, in recognizing an absolute privilege for psychotherapist-patient communications in a civil case and rejecting a case by case balancing approach, the Court in Jaffee v. Redmond held that this was necessary to implement the purpose of protecting the interest in privacy and trust in confidentiality. Jaffee, 518 U.S. 1,10-11 (1996). Neither Swidler & Berlin nor Jaffee involved a defendant's rights and liberty in a criminal case. See Swidler & Berlin, 118 S. Ct. at 2087 n.3 (noting Court need not address issue of exceptional circumstances implicating criminal defendant's constitutional rights which might warrant breach of immunity privilege).
270. 418 U.S. at 709 (explaining justice requires availability of compulsory process for production of evidence to both prosecutor and defendant).
271. Nixon, 418 U.S. at 709. See also United States v. Valenzuela-Bernal, 458 U.S. 858, 876 (1982) (O'Connor, J., concurring) (stating government control over availability of witnesses for defense in criminal case would cause unacceptable damage to "the integrity of the criminal justice system"). To ensure that justice is done, courts have even been held to have inherent power to call witnesses not called by either side. See, e.g., United States v. Liddy, 509 F.2d 428,438 (D.C. Cir. 1974), cert. denied, 420 U.S. 911 (1975); United States v. Lee, 972 F. Supp. 1330, 1345 n.5 (D. Kan. 1997)
272. 18 U.S.C. §§ 6001-6005 (1995).
273. Dixon, supra note 85, at 1436.
274. Loving v. United States, 517 U.S. 748, 757 (1996).
275. See generally, e.g., Brown, supra note 213, at 1564 (stating that if Nixon had been decided differently and had recognized existence of absolute privilege, "[i]t would have amounted to the Judiciary's acquiescing in a criminal system which allowed one governmental department both to prosecute a defendant and to control his defense. That appears to be just the type of consolidation of power that the system of separated powers was intended to thwart."); Engdahl, supra note 187, at 164 ("[W]hen the judges find such a law [of Congress] detrimental to judicial potency, they may disregard it as beyond Congresses] power.").
276. Nixon, 418 U.S. at 706.
277. Id. at 711.
278. Id.
279. Ake v. Oklahoma, 470 U.S. 68, 78 (1985).
280. 388 U.S. 14 (1967).
281. U.S. CONST, amend. VI.
282. Washinglon, 388 U.S. at 23.
283. Id. The Court in Washington rejected out of hand the suggestion that the statute was constitutional because of the risk that defendants may get accomplices to commit perjury on their behalf, noting the strong incentive accomplices often have to lie for the prosecution as well. Id. at 22-23. Despite Washington, courts sometimes offer a fear of defense witness perjury as partial justification for sustaining the constitutionality of precluding defense witness immunity. See, e.g., United States v. Turkish, 623 F.2d 769, 775-76 (2d Cir. 1980) (expressing concern that defense witness immunity could cause indiscriminate administration of justice by encouraging cooperative perjury among violators of law), cert. denied, 449 U.S. 1077 (1981).
284. 373 U.S. 83 (1963).
285. Brady, 373 U.S. at 87.
286. See, e.g., Kyles v. Whitley, 514 U.S. 419, 432-33 (1995) (finding constitutional violation when favorable evidence was suppressed by government and there is reasonable probability that evidence would have resulted in different outcome of proceeding); Giglio v. United States, 405 U.S. 150, 154 (1972) (finding nondisclosure of evidence that affects credibility qualifies under general rule of Brady).
287. 412 U.S. 470 (1973).
288. Wardius, 412 U.S. at 475-76.
289. See, e.g., Cool v. United States, 409 U.S. 100, 102-03 (1972) (per curiam) (concluding instruction to jury on how to consider defense witness testimony was unfairly prejudicial and violated defendant's constitutional rights); United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994) (recognizing constitutional violation occurs when judge's actions could have directed jury toward predisposition of guilt through confusion of judge's and prosecutor's functions), cert. denied sub nom., Garza v. United States, 514 U.S. 1097 (1995).
290. 409 U.S. 95 (1972) (per curiam).
291. Webb, 409 U.S. at 98.
292. Pennsylvania v. Ritchie, 480 U.S. 39, 56, 60 (1987) (holding defendant's due process rights entitled him to in camera review of confidential Children and Youth Services Agency records and disclosure of material information regarding fairness of trial).
293. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (observing fundamental right to confront witness may be subject to other important interests in criminal law process).
294. Id.
295. Id. at 296-97.
296. See id. at 298-302 (finding statements of individual admitting commission of crime were improperly excluded). The due process holding of Chambers actually was based on the exclusion of this critical evidence, "coupled with the State's refusal to permit Chambers to cross-examine" a witness the defense claimed was the person who committed the crime with which Chambers was charged. Id. at 302. Subsequent decisions, however, have made clear that exclusion of critical, reliable defense testimony is itself violative of due process of law. See, e.g., Green v. Georgia, 442 U.S. 95, 97 (1979) (per curiam) (finding exclusion of highly relevant and reliable hearsay testimony violates Fourteenth Amendment); Rivera v. Director, Dep't of Corrections, State of Illinois, 915 F.2d 280, 282-83 (7th Cir. 1990) (declaring exclusion of hearsay confession that exculpates criminal defendant denies defendant's due process), cert. denied, 516 U.S. 978 (1995).
297. 483 U.S. 44 (1987).
298. Rock, 483 U.S. at 61.
299. Id. at 59.
300. See id. at 59-61 (noting inaccuracies in process of hypnotic refreshment of memory can be reduced and resulting testimony can be corroborated by traditional methods).
301. Id. at 61.
302. 353 U.S. 53 (1957).
303. Roviaro, 353 U.S. at 62-63.
304. Id. at 55.
305. See id. at 59-60 (recognizing informer's privilege is government privilege intended to withhold identity of those who furnish incriminating information to law enforcement officers).
306. Id. at 59.
307. Id. at 60-61. Although Roviaro contained constitutional type fairness language, the Court never explicitly held that its decision was constitutionally mandated, but instead asserted that it was an exercise of its supervisory powers. Id. Subsequent decisions have treated Roviaro's principles as being constitutionally based. See, e.g., United States v. Valenzuela-Bernal, 458 U.S. 858, 870 (1982) (acknowledging Roviaro likely would have been decided on due process and confrontation grounds if claims had been presented); Pena v. LeFerve, 419 F. Supp. 112, 116 (E.D.N.Y. 1976) (finding language in Roviaro strongly suggested its holding was based on constitutional guarantees); Hawkins v. Robinson, 367 F. Supp. 1025, 1031-32 (D. Conn. 1973) (concluding language and circumstances in Roviaro manifest Court's concern with constitutional violations). In McCray v. Illinois, 386 U.S. 300 (1967), the Court rejected a due process and confrontation claim that a defendant was entitled to disclosure of an informant's identity for a hearing to determine whether the defendant's arrest and search of his person was constitutional. McCray, 386 U.S. at 312-13. The Court contrasted that situation with Roviaro, which involved "the trial itself where the issue was the fundamental one of innocence or guilt." Id. at 309.
308. See Davis v. Alaska, 415 U.S. 308, 311 (1974) (declaring defendant's constitutional right to confront witness supersedes state's interest in protecting juvenile witness's record).
309. 415 U.S. 308 (1974).
310. Davis, 415 U.S. at 310-11.
311. Id. at 319-20. See also Olden v. Kentucky, 488 U.S. 227 (1988) (per curiam), where the Court held that the Confrontation Clause was violated when the defendant was prohibited from cross-examining a critical prosecution witness about that witness's interracial relationship, which provided a possible motive for her to lie. Id. at 232. The state court had excluded the evidence based on a finding that the prejudice of possible embarrassment to the witness exceeded its probative value. Id. at 230.
312. See, e.g., Taylor v. Illinois, 484 U.S. 400, 416 (1988) ("We reject petitioner's argument that a preclusion sanction is never appropriate no matter how serious the defendant's discovery violations may be.").
313. Whether there is an absolute privilege for some communications such as those involved in the lawyer-client privilege is an open question presenting a more difficult resolution than the issue addressed by this Article. See supra notes 249-251 and accompanying text for a discussion of this point.
314. 523 U.S. 303 (1998).
315. Scheffer, 523 U.S. at 306-07.
316. Id. at 308.
317. Id.
318. 18 U.S.C. §§ 6001-6005 (1995).
319. Many commentators have reached this conclusion. See supra note 14 for sources discussing the fairness of the 1970 Immunity Act. Some commentators have noted that Rule 804(b)(3) of the Federal Rules of Evidence may be unconstitutionally unfair to the criminal defendant because it provides that, for the admission of a statement against interest, only the defendant has the burden of establishing "corroborating circumstances [which] clearly indicate the trustworthiness of the statement." See, e.g., Nagareda, supra note 14, at 1146-48 (suggesting Rule 804(b)(3) does not evenhandedly demand corroboration of statement's trustworthiness from prosecution as it does from defense); Peter W. Tague, Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception, 69 GEO. L.J. 851, 1000-11 (1981) (recognizing "unfair burden" imposed by Rule 804(b)(3) when criminal defendant attempts to introduce hearsay statements made against declarant's penal interest); Westen, supra note 14, at 158-59 (arguing Rule 804(b)(3) corroboration requirement impermissibly discriminates against criminal defendant and improperly restricts accused's right to present evidence). Whatever the merits of the constitutional claim concerning the unequal access to evidence created by Rule 804(b)(3), it is apparent that the situation is even more compelling with regard to immunized testimony. There is no hearsay involved in immunized testimony and, under Rule 804(b)(3), at least the defendant has a chance to have the evidence admitted, albeit under a tougher standard than that accorded the prosecution. Finally, and perhaps most importantly, the decision-maker on the issue of the admissibility of defense evidence is the judge rather than the prosecutor.
320. It is doubtful whether there is any government interest which would ever justify the one-sided approach of the 1970 Immunity Act. The Court has said: The state's interest in prevailing at trial - unlike that of a private litigant - is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases. Thus, also unlike a private litigant, a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict obtained. Ake v. Oklahoma, 470 U.S. 68, 79 (1985).
321. 388 U.S. 14, 16-17 (1967).
322. 418 U.S. 683, 688-89 (1974) (discussing President's claim of absolute communication privilege).
323. 353 U.S. 53, 58-59 (1957) (considering government's claim of informant privilege in furtherance of public interest in effective law enforcement).
324. 406 U.S. 441, 459-62 (1972).
325. Kastigar, 406 U.S. at 462. See also Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 79 (1964) (prohibiting federal government from utilizing state witness's compelled testimony in criminal proceedings against him).
326. Professor Westen characterized this burden for the prosecution as an "inconvenience" that does not justify the denial of immunity for defense witnesses. Westen, supra note 14, at 169-70.
327. See Government of Virgin Islands v. Smith, 615 F.2d 964, 973 (3d Cir. 1980) (stating instances where immunity is costless because government has all evidence needed to prosecute independent of witness's testimony). See generally United States Department of Justice, CRIMINAL RESOURCE MANUAL No. 726: STEPS TO AVOID TAINT (1997).
328. A defendant retains the right to claim the Fifth Amendment privilege while his case is on appeal following a conviction. See, e.g., United States v. Warfield, 97 F.3d 1014, 1019-20 (8th Cir. 1996) (finding statement by defendant's counsel that if defendant is called as witness, he would exercise Fifth Amendment privilege against self-incrimination, is sufficient to conclude that defendant would claim privilege), cert. denied sub nom., Thomas v. United States, 520 U.S. 1110 (1997); United States v. Schwimmer, 882 F.2d 22, 28 (2d Cir. 1989) (finding criminal defendant previously tried, convicted, and pending appeal may be granted use immunity and then be compelled to testify on issues), cert. denied,493 U.S. 1071 (1990).
329. See, e.g., United States v. Lacey, 86 F3d 956, 972 (10th Cir.) (finding government met Kastigar burden in part because of availability of transcript of witness's trial), cert. denied, 519 U.S. 944 (1996); United States v. Pantone, 634 F.2d 716, 721 (3d Cir. 1980) (applying Kastigar proposition that evidence be from independent source).
330. See, e.g., Smith, 615 F.2d at 973 (stating government may seek to postpone defense trial in order to gather needed evidence); Westen, supra note 14, at 169 (discussing methods of lessening inconvenience of proving independent source of incriminating evidence in future proceedings against defense witness).
331. This remedy for the government, known as the "Chinese Wall," results in the prosecutor in the subsequent prosecution of the witness being able to represent that she does not know anything at all about the immunized testimony, thus easily fulfilling the Kastigar burden of establishing independently derived evidence. See, e.g., United States v. Harris, 973 F.2d 333, 337 (4th Cir. 1992) (discussing prosecutor must be segregated and "unfamiliar" with compelled evidence, in order to satisfy Kastigar burden); Lacey, 86 F.2d at 72 (discussing application of "Chinese Wall" to prevent use of tainted evidence); Schwinmer, 882 F.2d at 26 (stating "Chinese Wall" should be erected between prosecutors to ensure subsequent proceedings are not tainted). A Chinese Wall will not always be feasible within the jurisdiction offering immunity, but it does provide an easy remedy for prosecutors from another jurisdiction who may wish to prosecute the witness. See, e.g., Piccirillo v. New York, 400 U.S. 548, 568 (1971) (Brennan, J., dissenting) (finding danger of taint "may fade when the jurisdiction bringing the prosecution differs from the jurisdiction that compelled the testimony"). See supra note 92 for a discussion of prosecution by a different jurisdiction.
332. See United States v. North, 920 F.2d 940, 942-43 (D.C. Cir. 1990) (concluding government did not fulfill its Kasligar burden and establish that testimony of its witnesses was not influenced by exposure to North's highly publicized nationally televised compelled testimony before congressional committee), cert. denied, 500 U.S. 941 (1991). North is an unusual context and the result is a rarity in that there are few decisions holding that the government did not fulfil its Kastigar burden.
333. Of course, even without the unfairness of the immunity statute, the prosecution has much greater access to witnesses with a Fifth Amendment privilege. While the defense cannot offer anything in return for testimony, the prosecution has broad power to make deals with potential defendants and defendants which can be conditioned on testimony being given against others. See, e.g., United States v. Mitchell, 178 F.3d 904, 909 (7th Cir. 1999) (finding statute prohibiting giving anything of value in return for testimony does not apply to prosecutors); United States v. Johnson, 169 F.3d 1092, 1098 (8th Cir. 1999) (same).
334. The Court's cases sometimes have focused on one or the other of these rights, but at this point, it is generally accepted that the right to present an effective defense through the presentation of witnesses and evidence encompasses both rights. The Court's most recent case, United States v. Scheffer, 523 U.S. 303 (1998), did not differentiate the Compulsory Process and Due Process Clauses in analyzing defendant's constitutional claim that he was denied the right to present an effective defense because polygraph evidence was barred. Scheffer, 523 U.S. at 308.
335. See, e.g., United States v. Talley, 164 F.3d 989, 997-98 (6th Cir. 1998) (discussing effective defense theory and rationale not to adopt it, as well as prosecutorial misconduct theory in which court had yet to decide whether or not to adopt it), cert. denied, 119 S. Ct. 1793 (1999); Curtis v. Duval, 124 F.3d 1, 9 (1st Cir. 1997) (addressing effective defense theory and its rejection based on separation of powers doctrine and prosecutorial misconduct theory based on due process restrictions placed on prosecutor's decision to grant immunity).
336. See, e.g., United States v. Hooks, 848 F.2d 785, 798-803 (7th Cir. 1988) (discussing prosecutorial misconduct theory and discretion of prosecutor to grant immunity when required by public interest, and how that right is constrained by right to due process); United States v. Turkish, 623 F.2d 769, 777 (2d Cir. 1980) (stating Due Process Clause "does not create general obligations for prosecutors or courts to obtain evidence protected by lawful privileges"), cert. denied, 449 U.S. 1077 (1981).
337. Duval, 124 F.3d at 9.
338. For a very rare case in which such intimidation was found, see United States v. Morrison, 535 F.2d 223, 227 (3d Cir. 1976), a case in which the prosecutor's repeated warnings against perjury were found to be intimidating and unnecessary.
339. Duval, 124 F.3d at 9. Courts have sometimes posed as a possible misconduct situation a case in which the prosecutor gives his own witnesses immunity, but in the same case denies a defense witness immunity who would testify concerning the same issue. See, e.g., United States v. Diaz, 176 F.3d 52, 115 (2d Cir. 1999) (stating defense must prove government used ability to grant immunity in discriminatory fashion to establish unfairness between prosecution witness's grant of immunity and defense witness's denial); United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991) (finding it unfair when only prosecution's witness is afforded grant of immunity); Earl v. United States, 361 F.2d 531, 533-34 (D.C. Cir. 1966) (stating issue of fairness in granting immunity to prosecution witness and in same instance denying immunity to defense witness is beyond province of judiciary).
340. Brady v. Maryland, 373 U.S. 83, 87 (1963). See Kyles v. Whitley, 514 U.S. 419, 441 (1995) (finding constitutional violation where government withholds evidence that had "reasonable probability" of leading to different outcome).
341. See, e.g., United States v. Anguilo, 897 F.2d 1169, 1191 (1st Cir.) (discussing effective defense theory), cert. denied, 498 U.S. 845 (1990).
342. 615 F.2d 964 (3d Cir. 1980).
343. Smith, 615 F.2d at 972-74. Oddly, the Third Circuit also adopted the prosecutorial misconduct theory in Smith. It held that if the prosecutor did not consent to immunity for a defense witness in order to gain a tactical advantage, and thus is guilty of "distorting" the fact-finding process, the court could compel immunity for the defense without any showing by the defense that the testimony was exculpatory or otherwise essential. If the proposed testimony was relevant, and the prosecutor refused to grant statutory immunity based on this perceived misconduct, the court could enter a directed verdict of acquittal. Id. at 968-69 & n.7.
344. 410 U.S. 284 (1973). See supra notes 275-77 and accompanying text for a discussion of Chambers.
345. 373 U.S. 83 (1963). See supra notes 265-66 and accompanying text for a discussion of Brady.
346. 758 F.2d 363 (9th Cir. 1985). See supra notes 152-61 and accompanying text for a discussion of Valenzuela-Bernal.
347. See, e.g., Strickler v. Greene, 119 S. Ct. 1936, 1955 (1999) (discussing "reasonable probability" requirement that withheld evidence would have led to different result had it been revealed).
348. There is no valid reason for restricting the right to exculpatory evidence. The right to an effective defense includes the right to present no defense evidence at all and the right to attempt to convince the fact-finder that the government has not met its burden of proof beyond a reasonable doubt. The Court has repeatedly and correctly recognized the important role impeachment evidence can play for the defendant. See, e.g., Davis v. Alaska, 415 U.S. 308, 316 (1974) (discussing confrontation clause); Giglio v. United States, 405 U.S. 150, 154 (1972) (stating due process disclosure obligation for government extends to material impeachment evidence). See supra notes 289-92 and accompanying text for a discussion of Davis.
349. Given the burden sometimes imposed on the prosecution in response to a defense immunity request, this requirement of a showing of some necessity seems fair and is not unique. See In re Sealed Case, 121 F.3d 729, 754 (D.C. Cir. 1997) (concluding that to overcome presidential communications privilege, there must be a showing that evidence is important and that it "is not available with due diligence elsewhere"). See, e.g., FED. R. EVID. 807 (defining residual exception to hearsay rule imposing requirement that "statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts").
350. A pre-trial notice requirement is imposed on the defense in some other situations. See, e.g., FED. R. GRIM. P. 12.1 (requiring notice of alibi defense); FED. R. CRIM. P. 12.2 (requiring notice of insanity and mental state defenses).
351. Because a court has to make a determination, the requirement should be similar to one imposed in the Fourth Amendment context when police activities are questioned and the prosecutor "must be able to point to specific and articulable facts." Terry v. Ohio, 392 U.S. 1, 21 (1968). It should no longer be sufficient to rely on the status of the witness as a potential indictee, with the prosecutor asserting only an interest "in keeping the way clear for a possible future prosecution." Curtis v. Duval, 124 F.3d 1, 10 (1st Cir. 1997). See also United States v. Turkish, 623 F.2d 769, 778-79 (2d Cir. 1980) (finding prosecutor can rely on witness's status as possible or actual criminal defendant when dealing with immunity).
352. See, e.g., Simmons v. United States, 390 U.S. 377, 394 (1968) (providing use immunity for testimony of defendant on issue of standing at suppression hearing, in order to protect defendant's Fourth Amendment rights); In re Grand Jury Investigation, 587 F.2d 589, 597 (3d Cir. 1978) (providing use immunity for testimony predicate to Speech and Debate Clause defense); United States v. Branker, 418 F.2d 378, 380 (2d Cir. 1969) (court provided use immunity for defendant's statements at forma pauperis hearing).
353. See, e.g., Roviaro v. United States, 353 U.S. 53, 65 n. 15 (1957) (finding government has choice whether to disclose identity and whereabouts of confidential informant "or suffer dismissal"); Westen, supra note 14, at 170 n. 477 (stating prosecution can avoid grant of immunity by accepting dismissal).