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What If a Federal Prosecutor Offers You Immunity?

Posted by Dmitry Gorin | Nov 13, 2023

In the legal context, immunity is a powerful tool wielded by federal prosecutors. It can serve as a lifeline to those accused of crimes, especially if you have information to help them obtain convictions on other, perhaps more serious crimes.

At the same time, an offer of immunity is not an ironclad guarantee; it comes with its complexities and potential pitfalls. If you're involved in a federal criminal case and have information the government could use, you could enter into immunity negotiations.

What If a Federal Prosecutor Offers You Immunity?
Immunity refers to an agreement between a federal prosecutor and the accused person.

Generally, “immunity” refers to exceptions from some or all penalties in exchange for offering information. Your federal defense lawyer will review the details of your case to determine if immunity negotiation would be a wise strategy for you as you progress through a criminal investigation.

It would be best never to try negotiating with the government or speaking with federal law enforcement agents without consulting your attorney first. You could reveal information that would harm your case and miss out on a chance to negotiate a favorable deal.

An immunity agreement could prove valuable in your federal criminal case. Still, your lawyer must closely examine every detail of your situation to decide whether this agreement will result in the desired outcome.

Our federal criminal defense lawyers have extensive knowledge of how immunity works in federal criminal cases, which allows us to guide you through every step of the process. Let's discuss immunity and your options if prosecutors offer you some immunity.

Understanding Immunity

Immunity refers to an agreement between a prosecutor and a person accused of a crime, where the prosecutor promises not to prosecute the person for certain offenses in exchange for valuable information or testimony.

Offering immunity often aims to secure cooperation from the accused to build a stronger case against other, usually more significant, targets.

Understanding that immunity does not equate to a free pass is crucial. Even with an immunity offer, charges may still be filed if they are found to be involved in other crimes not covered by the immunity agreement.

Even worse, sometimes the federal government looks for loopholes in its promises and may attempt to file charges anyway. Generally, there are different types of immunity in federal criminal cases, including the following:

  • The first is a proffer letter of immunity, a written agreement between you and the federal prosecutor that says you can tell them all the information about your case, and they will not use it against you.
  • The next type of immunity is an agreement between the government and you that the information you give them will not be used to prosecute you or find further incriminating evidence.
  • Another type of immunity is perhaps the strongest. Suppose a federal judge decides to order you to give testimony. In that case, since the Fifth Amendment outlines your right to remain silent, what you say due to a court order cannot be used directly or indirectly against you.

Your defense attorney will help you understand which type of immunity you are being offered, allowing you to make an informed decision.

The Bill Cosby Case Example

The high-profile case of comedian Bill Cosby serves as a stark reminder of the reality that federal prosecutors sometimes go back on their word.

In a twist of legal irony, Bill Cosby was initially offered immunity from prosecution because the prosecutor didn't think a criminal conviction was likely at the time. Instead, it was believed that a civil suit might yield a more favorable outcome for the accuser.

Cosby was offered immunity as an incentive for his cooperation and candid testimony in the civil suit. This decision was seen as a strategic move to ensure justice by other means.

However, the tables turned dramatically when Cosby's words, given under the presumed protection of this immunity during the civil case, were later used against him in new criminal charges. He was convicted on three counts of aggravated indecent assault and spent several years in prison. Only upon a successful appeal was his conviction overturned.

Full vs. Partial Immunity

When prosecutors offer immunity, they typically provide you full or partial immunity, as discussed below.

Full vs. Partial Immunity
A federal prosecutor could offer you full or partial immunity in a federal criminal case.

Full Immunity 

Full immunity, often called transactional immunity, provides an individual complete protection from prosecution for a particular offense or set of offenses. This means that once granted, the individual cannot be charged or prosecuted for those specific crimes, regardless of the evidence presented later.

Partial Immunity

Partial immunity, also known as use and derivative use immunity, is more limited. While it protects individuals from their testimony being used against them, it does not necessarily prevent prosecutors from filing charges based on independent evidence gathered or other charges directly or indirectly related to the event.

How to Navigate an Offer of Immunity

If you are suspected of committing a crime, and federal prosecutors give you an offer of immunity in exchange for your testimony, make sure you take the following steps to protect your interests—and possibly, your freedom:

  • Retain Legal Counsel: It's imperative to receive counsel from a criminal defense attorney experienced in federal criminal cases. They will understand the nuances of immunity agreements and can help negotiate the best possible terms.
  • Understand the Scope of the Offer: Ensure you fully comprehend the scope of the immunity offer, including what crimes it covers and any conditions or exceptions. Find out if you're being offered full or partial immunity.
  • Avoid Misconceptions about Immunity: Remember that immunity does not equate to complete freedom from prosecution. It only protects against prosecution for the specific crimes covered by the immunity agreement.
  • Get It in Writing: Although even verbal agreements can be legally enforceable, you'll be more protected against future prosecutorial action if you make sure the agreement is given in writing. Work with your lawyer to ensure the immunity offer includes all necessary conditions. Key terms, the scope of the investigation, and any stipulations affecting your rights should be clearly defined. Do not provide any information until a formal written immunity agreement is in place.
  • Maintain Open Communication with Your Counsel: Keep an open line of communication with your legal counsel throughout the process. Their guidance is invaluable in navigating an immunity agreement's complexities and potential pitfalls. Even with immunity, you should still avoid answering the prosecutor's questions without your attorney present to protect your rights.
  • Cooperate Fully: Once the immunity agreement is in place, cooperate fully with the prosecution. This cooperation is often a vital condition of the immunity offer.
  • Get Additional Protection if Needed: If you're offered immunity in exchange for testifying against someone else (for example, someone involved with organized crime), you may need to seek additional protection from federal prosecutors to keep you safe from possible retaliation. This may include anything from police presence at your home/business to the Witness Protection Program enrollment.

Contact our law firm to start building your defense strategy immediately. We can guide you through every step of your federal criminal case. Eisner Gorin LLP has offices in Los Angeles, California.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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