We have all seen the picture of Lady Justice: the blind woman holding the sword and the perfectly balanced scales. This image purports to represent the level playing field that is the criminal justice system. However, criminal practitioners know that these scales tip somewhere between slightly and significantly in favor of the government because prosecutors have far more weapons at their disposal to pursue cases than do defendants to oppose them. One of the most powerful weapons in a prosecutor's arsenal is its ability to grant a witness immunity.

As anyone who practices criminal law knows, sometimes citizens with relevant information prefer not to become witnesses in criminal matters. Some live by a personal code that condemns those who testify on the governments' behalf, some fear retaliation by defendants or others, some seek to avoid prosecution for their own crimes, and more. Where witnesses to a crime are reluctant to become involved in a criminal proceeding, prosecutors can compel testimony with a simple grant of immunity. When that happens—problem solved—the government gets its witness.

With the power to immunize witnesses also comes the power not to immunize witnesses. By not immunizing specific witnesses, prosecutors can virtually assure that certain people never testify. This Hamlet-esque question, to immunize or not to immunize, means the government can use immunity as both sword and shield.

Defense attorneys do not have the ability to immunize witnesses. This is an example of the aforementioned imbalance of power: those who can compel testimony versus those who cannot. It is obvious which side of the "v" has the advantage.

The imbalance is neither a secret nor, apparently, entirely undesirable. The Second Circuit addressed this inherent imbalance in the criminal justice system in United States v. Turkish, 623 F.2d 769 (S.D.N.Y. 1980). There, the court recognized that "unfairness may inhere in some situations because the government's grant of use immunity affords it an advantage over the defendant's ability to present a defense," which defendants may perceive as negatively impacting their Fifth Amendment Due Process rights. Id. at 774. Turkish actually embraced the notion of imbalance. "[I]n the context of criminal investigation and criminal trials, where accuser and accused have inherently different roles, with entirely different powers and rights, equalization is not a sound principle on which to extend any particular procedural device." Id. at 774-75. In other words, balance is not the goal.

While perfect harmony between prosecution and defense may not be the criminal justice system's overarching goal, the balance of power does not have to tip so starkly in the government's favor. There is a judicial mechanism that can somewhat even the playing field. Lawyers from the beginning of time, aka the 1970s, talk in only hushed tones in deserted corners of the courthouse about a concept known as reverse immunity. Reverse immunity is essentially inoculation against a potential criminal charge for a witness who can provide exculpatory evidence for the defense. Anyone who has practiced criminal law for more than 30 minutes has heard of it but might have to go back 30 years to find an example of a court granting it.

The right of a criminal defendant to seek immunization of a potential witness stems from the Due Process Clause of the Fifth Amendment to the U.S. Constitution, which provides a criminal defendant the right to a fair trial. It is reasonably obvious why a defendant would seek such a remedy. The overarching reason is that defendants quickly learn that most unindicted witnesses are afraid to testify in opposition to the government's theory of criminality because such witnesses fear the possibility of perjury or obstruction charges. Often, the very witness a defendant hopes to elicit exculpatory testimony from is an unindicted coconspirator—and providing testimony, rather than asserting a Fifth Amendment privilege, is akin to handing the government a roadmap to charge and convict said coconspirator. And finally, many witnesses simply do not wish to be involved. It is sad but true that people who do not get charged often do not wish to be involved for either the defense or government out of concern of losing a job, harming a reputation, being named in a civil or regulatory law suit and more.

There are two ways a defendant can attempt to secure reverse immunity so a witness will provide exculpatory testimony. First, the defendant can request that the prosecutor grant immunity. The second is that defendants can move the trial court for a grant of immunity.

Addressing the government's general receptiveness to granting defense witnesses immunity first, it is a near impossibility to achieve. In fairness to the government, words it pains us to use, there are legitimate reasons why it would not embrace the notion of immunizing defense witnesses. Chief among them is that criminal charges often come in stages. If reverse immunity is easily obtained by the defense for persons uncharged in the first wave of indictments, it could significantly hamper ongoing investigations. This obviously runs counter to the government's goals. In addition, there is a concern that if immunity is readily available to defendants, they and their witnesses might collaborate on a version of events that is beneficial to both defendant and witness but not the government. Clearly, the government would be loath to assist unscrupulous defendants in succeeding to fabricate evidence. Finally, a prosecutor's job is to lawfully seek convictions in the crimes it charges; it is not to make sure that the defense has its own witnesses. This may seem cynical, but the criminal justice system is in fact an adversarial one and, like it or not, strategy should and does factor into the initiation of cases and how they proceed. Prosecutors are naturally wary of immunizing witnesses who will support a counter-narrative to its own theory of criminality.

Assuming arguendo that the government will be less than accommodating to a request for reverse immunity, that really leaves petitioning the court for the sought after relief. But invoking the court's authority to grant immunity is tricky. A little-known secret about reverse immunity is that it is not really within a court's authority to grant it. The legislative branch has never bestowed upon the judicial branch the power to grant immunity. This authority lies exclusively with the executive branch, i.e., the prosecutor. Therefore, the court, if persuaded that reverse immunity is warranted, can order the government to immunize the relevant witness. A court can issue such an order when "(1) the government has engaged in discriminatory use of immunity to gain tactical advantage or, through its own overreaching, has forced the [defense] witness to invoke the Fifth Amendment; and (2) the witness' testimony will be material, exculpatory and not cumulative and is not obtainable from any other source." United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006); accord United States v. Stewart, 2018 WL 5780408, at *5 (2d Cir. Nov. 5, 2018).

Despite the power to issue such an order, however, courts cannot require the government to follow the order and actually confer immunity on a specific witness. The judge can make the suggestion, even sternly, or try to force the issue, but ultimately that authority lies exclusively with the prosecution. If a judge chooses to wade into this morass, she can hold the government's feet to the fire by either adjourning the case until such a time as the witness is given immunity or dismissing the case outright. These are drastic remedies to be sure, but ones that courts have at their disposal to enforce what is effectively unenforceable.

Because, generally speaking, courts do not grant reverse immunity, defendants rarely even make motions seeking it. But there are instances when courts should give serious consideration to granting motions for reverse immunity. The best example is when the government has brought a criminal case after a lengthy investigation, a charged defendant chooses to proceed to trial, and the government opposes a reverse immunity claiming future indictments might be considered. While courts have noted the risk to other possible prosecutions is a concern "normally better assessed by prosecutors than by judges," Turkish, 623 F.2d at 776, the government should not be able to avoid an adverse ruling by espousing that the two possible defendants in the bush are more important than the one in its hand now. When the government exercises its discretion not to charge an individual, courts and defendants should have the right to secure testimony to ensure that the trier of fact gets all of the available evidence, not just one side of it.

Motions for reverse immunity should not be easily granted. But they should be granted more often than Haley's Comet comes around. To achieve this, defense attorneys must start bringing those motions more frequently, even knowing they will lose most if not all of them. Only when courts routinely contemplate these motions, and evaluate the government's rationale for continually opposing it can judges consider whether judicial action meant to increase the availability of reverse immunity will undermine the government's interests in prosecuting crimes or will benefit the criminal justice system by making it more balanced. The risk to prosecutions as a general matter should not prevent courts from intervening in the appropriate circumstances on behalf of defendants who have a constitutional right to a truthful testimony whether sponsored by the prosecution or the defense. In short, Lady Justice's scales will never be perfectly equal, but they need rebalancing; the occasional grant of reverse immunity would go a long way towards accomplishing that goal.

Gregory Morvillo is a New York-based partner in Orrick, Herrington & Sutcliffe's white-collar and government investigations practice. Tiffany Rowe is a senior associate in Orrick's white-collar practice in Washington, D.C.