![]() (while a wall separating pre-immunity and post-immunity investigative and prosecution teams is not required, it is considered a best practice, because a well constructed wall is demonstrative evidence that the prosecution did not make direct or indirect use of immunized testimony). (while there is no per se rule requiring a prosecutor who has been exposed to immunized statements to withdraw from the case, separating pre-immunity from post-immunity evidence is considered a best practice). (a grant of immunity must leave the witness and the government in substantially the same position as if the witness had claimed his privilege in the absence of a grant of immunity). (because an accused who has been given testimonial immunity is compelled to relinquish his right against self-incrimination, the government bears the burden to prove that its evidence is not tainted by immunized testimony the government must affirmatively prove by a preponderance of the evidence that its evidence is derived from a legitimate source wholly independent of the compelled testimony). (in contrast to transactional immunity, testimonial immunity does not impose a per se bar to prosecution of the witness for the offenses about which the testimony or information is given under grant of immunity the government may prosecute an immunized witness where it can demonstrate that it has made neither direct nor indirect use of the testimony). (immunity from the use of compelled testimony and evidence derived therefrom includes evidentiary and nonevidentiary uses, including the indirect use of testimony to alter the investigative strategy or to inform the decision to prosecute). (because the purpose of the Fifth Amendment privilege against self-incrimination is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts, testimonial immunity only applies to compelled testimony and not all statements made by an accused further, for a communication to be considered testimonial, it must, explicitly or implicitly, relate a factual assertion or disclose information). (the government may compel a witness to testify under a grant of use or derivative-use immunity contrary to the witness’s Fifth Amendment privilege against self-incrimination immunity from the use of the compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege). 431 (a grant of testimonial immunity provides immunity from the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial it is the minimum grant of immunity adequate to overcome the privilege against self-incrimination provided by the Fifth Amendment to the Constitution and Article 31, UCMJ neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial). (prosecution of appellant on murder charge was not based on his immunized testimony in violation of Fifth Amendment’s privilege against self-incrimination his immunized testimony did not reveal anything to the government not already known from his prior statements or suggest that appellant was considering an insanity defense, the investigation of appellant was completed prior to his immunized testimony, the decision to prosecute appellant was made long before he gave any immunized testimony, and the prosecutors in appellant’s case were not exposed to immunized testimony). (in order to prosecute an immunized witness who has given compelled testimony, the government must affirmatively prove by a preponderance of the evidence that its evidence is derived from a legitimate source wholly independent of the compelled testimony the grant of immunity must leave the witness and the government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity). (the government may prosecute an immunized witness where it can demonstrate that it has made neither direct nor indirect use of the testimony). 283 (the Fifth Amendment’s privilege against self-incrimination provides that no person shall be compelled in any criminal case to be a witness against himself immunity from the use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege). CORE CRIMINAL LAW SUBJECTS : Evidence: Immunized Testimony
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