Prosecutors possess broad and largely unfettered authority to confer or request immunity for individuals. Their discretion stems from the power to pursue criminal charges, which falls squarely within the domain of the executive branch. Entrusting some of that discretionary authority to the judiciary— and thus limiting or even foreclosing future prosecutions of the immunized individual—has substantial separation of powers implications.
Under current law, courts may immunize a defense witness in limited circumstances. There are strict requirements for obtaining such an order, and in many circuits that standard turns on whether a prosecutor’s refusal to immunize a witness resulted from misconduct. Other circuits have taken a more equitable approach, focusing on whether the denial of immunity for the defense witness had the effect of distorting the fact-finding process. These different, geography-driven standards result in disparate treatment of defense witness immunity requests.
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