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Field_Note_12_Final .docx (Do Not Delete)6/8/2015 2:02 PM258New England Law Reviewv. 49 | 231Field_Note_12_Final .docx (Do Not Delete)6/8/2015 2:02 PM2015Circuit Split on Defense-Witness Immunity259Defense Witnesses Need Immunity Too: Why the Supreme Court Should Adopt the Ninth Circuits Approach to Defense-Witness ImmunityAlison M. Field[footnoteRef:1]* [1: * Candidate for Juris Doctor, New England Law | Boston (2015). B.A., Psychology, Indiana University (2012). I would like to thank the New England Law Review staff for their hard work, my friends and family for encouraging me, and, finally, DMF for providing me with the inspiration for the article. ]

Abstract[W]here two eyewitnesses tell conflicting stories, and only the witness testifying for the government is granted immunity, the defendant would be denied any semblance of a fair trial. With all the money, power, and witnesses at its disposal, it is hard to see how the government ever loses a case. In order to reconcile the power imbalance between the government and the defendant, as well as to protect the defendants constitutional rights, Congress has developed the use-immunity statute, 18 U.S.C. 6002. Still, in criminal cases, U.S. courts are reluctant to grant immunity to defense witnesses. Prosecutors also have the power to provide immunity to defense witnesses, but not surprisingly, they rarely ever exercise that power. Thus, defendants are prevented from presenting a complete defense when a possible witnesswith exculpatory evidence or statements that could impeach the prosecutions witnessis unavailable (primarily due to asserting the Fifth Amendment privilege).This Note argues that courts should have broad discretion in providing defense-witness immunity. Accordingly, the Supreme Court, which has not ruled on the issue of defense-witness immunity, should adopt the Ninth Circuits approach. The Ninth Circuit approach considers: (1) whether the testimony is relevant; and (2) whether the prosecutor caused the defense witness to invoke his Fifth Amendment privilege, or denied immunity to a defense witness whose testimony would contradict that of a government witness who was granted immunity.IntroductionPicture this scenario: you are charged with committing a crime and the government puts a witness on the stand who provides essential testimony against you.[footnoteRef:2] Your attorney attempts to present a witness who can testify on your behalf and rebut the government witnesss testimony, but your witness refuses to testify.[footnoteRef:3] Your witness is afraid that testifying for you will implicate him in the crimes that you are charged with, and he is unwilling to cooperate.[footnoteRef:4] As a result the jury hears only one side of the storythe governments.[footnoteRef:5] [2: See United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991) (discussing the scenario where a defendant witness is not granted immunity, even though the witnesss testimony directly conflicts with the immunized-government witnesss testimony).] [3: See id. at 108586.] [4: See id.] [5: See id. at 1087.]

[W]here two eyewitnesses tell conflicting stories, and only the witness testifying for the government is granted immunity, the defendant would be denied any semblance of a fair trial.[footnoteRef:6] With all the money, power, and witnesses at its disposal, it is hard to see how the government ever loses a case.[footnoteRef:7] In order to reconcile the power imbalance between the government and the defendant, as well as to protect the defendants constitutional rights, Congress developed the use-immunity statute, 18 U.S.C. 6002.[footnoteRef:8] Still, in criminal cases, courts across the United States are reluctant to grant immunity to defense witnesses.[footnoteRef:9] Prosecutors also have the power to provide immunity to defense witnesses, but not surprisingly, they rarely ever exercise that power.[footnoteRef:10] Thus, defendants are prevented from presenting a complete defense when a possible witnesswith exculpatory evidence or statements that could impeach the prosecutions witnessis unavailable.[footnoteRef:11] [6: Id. (quotingUnited States v. Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984)).] [7: See Hon. H. Lloyd King, Jr., Why Prosecutors are Permitted to Offer Witness Inducements: A Matter of Constitutional Authority, 29 Stetson L. Rev. 155, 175 (1999) (examining the lack of power defense counsel possess in relation to the power afforded to government attorneys).] [8: See 18 U.S.C. 6002 (2012).] [9: See Nathaniel Lipanovich, Resolving the Circuit Split on Defense Witness Immunity: How the Prosecutorial Misconduct Test Has Failed Defendants and What the Supreme Court Should Do About It, 91 Tex. L. Rev. 175, 178 (2012).] [10: See Julie R. OSullivan, Federal White Collar Crime: Cases and Materials 87478 (4th ed. 2009).] [11: Unavailability is most often due to a witness asserting the Fifth Amendment privilege. See United States v. Straub, 538 F.3d 1147, 115658 (9th Cir. 2008) (leaving the defendant with no choice but to accept the trial courts decision not to grant use immunity).]

This Note argues that courts should have broader discretion in providing defense-witness immunity. Accordingly, the Supreme Court, which has not ruled on the issue of defense-witness immunity, should adopt the Ninth Circuits approach. The Ninth Circuit approach considers: (1) whether the testimony is relevant, and (2) whether the prosecutor caused the defense witness to invoke the Fifth Amendment privilege or denied immunity to a defense witness whose testimony would contradict that of the government witness who was granted immunity.[footnoteRef:12] [12: Id. at 1162.]

Part I addresses the importance of defense-witness immunity statutes and the proponents arguments for advancing these statutes. Part II introduces the three different approaches the circuit courts have taken regarding a trial courts ability to grant defense-witness immunity. Part III analyzes and discounts the Third Circuit approach to defense-witness immunity. Part IV discusses and rejects the Second Circuit defense-witness immunity approach. Part V argues that the Supreme Court should adopt the Ninth Circuit defense-witness immunity approach. This Note concludes that the Supreme Court should adopt the Ninth Circuit approach to defense-witness immunity because it is more lenient,[footnoteRef:13] focuses on the effect of the prosecutors actions,[footnoteRef:14] and balances grants of immunity for prosecutors and defendants.[footnoteRef:15] [13: Compare id. (broadening the prosecutorial misconduct definition to include conduct that has the effect of distorting the fact-finding process), with United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (limiting the prosecutorial misconduct definition only to conduct that deliberately distorts the fact-finding process).] [14: Compare Straub, 538 F.3d at 1162 (holding that prosecutorial misconduct can be proven with actions that have the effect of distorting the fact-finding process), with Ebbers, 458 F.3d at 119 (requiring that prosecutorial misconduct be shown by deliberate actions that distort the fact-finding process).] [15: See Straub, 538 F.3d at 115657 (allowing courts to grant immunity for defense witnesses, instead of making the immunity grants dependent on the prosecutors decisions).]

I.BackgroundA.The Importance of the Unsettled Area of Defense-Witness Immunity StatutesIn 1956, the Supreme Court recognized the importance of immunity statutes and declared that statutes granting immunity ha[ve] become part of our constitutional fabric.[footnoteRef:16] Every state has enacted a use-immunity statute, and Congress has passed over forty immunity statutes on the federal level.[footnoteRef:17] The use-immunity statute, 18 U.S.C. 6002,[footnoteRef:18] provides federal prosecutors with the ability to grant witnesses immunity, but does not grant defendants equivalent power.[footnoteRef:19] Thus, courts have attempted to resolve this inequity in two ways, by either: (1) directly granting witnesses immunity;[footnoteRef:20] or (2) threatening to dismiss the prosecutions case if it does not provide immunity for defense witnesses.[footnoteRef:21] As state and federal courts attempt to reconcile this unsettled area of law, the division in approaches has only increased.[footnoteRef:22] However, the Supreme Court has yet to decide when a defendant is entitled to obtain immunity for witnesses.[footnoteRef:23] [16: Ullmann v. United States, 350 U.S. 422, 438 (1956).] [17: Murphy v. Waterfront Commn, 378 U.S. 52, 94 (1964)(White, J., concurring), overruled in part on other grounds byUnited States v. Balsys, 524 U.S. 666 (1998).] [18: 18 U.S.C. 6002 (2012) (providing that an immune witnesss testimony will not be used against the witness in a future prosecution).] [19: See id.] [20: SeeGovt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980)(explaining that the effective defense theory requires defense-witness immunity when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity). However, only the Third Circuit has taken this approach. See33A Federal Procedure: Lawyers Edition 80:301 (2014) [hereinafter Federal Procedure].] [21: See, e.g.,United States v. Burke, 425 F.3d 400, 411 (7th Cir. 2005)([A] federal court cannot order the government to immunize a defense witness, [but] courts can dismiss an indictment where the prosecutors refusal to grant immunity has violated the defendants right to due process.) (citingUnited States v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir. 1988)).] [22: SeeUnited States v. Straub, 538 F.3d 1147, 1166 (9th Cir. 2008) (urging judgment of acquittal unless the prosecution granted use immunity to the defense witness);State v. Belanger, 210 P.3d 783, 79293 (N.M. 2009)(creating a rule allowing district courts to grant use immunity with or without the prosecutors agreement).] [23: The Supreme Court had the ability to resolve questions surrounding defense witness immunity, but declined every opportunity to do so. See, e.g.,Hunter v. California, 498 U.S. 887, 887 (1990)(Marshall, J., dissenting from denial of writ of certiorari); Autry v. McKaskle, 465 U.S. 1085, 1086 (1984)(Marshall, J., dissenting from denial of writ of certiorari).]

B.Arguments in Favor of Obtaining Immunity for Defense WitnessesWhile obtaining immunity for defense witnesses remains an unsettled area of law, proponents continue to advance a multitude of arguments in favor of granting defense-witness immunity.[footnoteRef:24] These arguments center on two premisesdefense-witness immunity is needed to: (1) balance the power between the prosecution and the defense to ensure a fair and just trial;[footnoteRef:25] and (2) protect the defendants constitutional rights.[footnoteRef:26] [24: Lipanovich, supra note 8, at 185.] [25: Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the States accusations.).] [26: Lipanovich, supra note 8, at 185.]

1. Balancing Power to Ensure a Fair and Just TrialThe first argument in support of defense-witness immunity emphasizes that leveling the playing field, between defendant and prosecutor, allows courts to provide a fair and just trial.[footnoteRef:27] Defense-witness immunity can uncover the truth and prevent the incarceration of innocent defendants.[footnoteRef:28] The U.S. Attorney Manual is a Department of Justice internal reference guide that provides the controlling policies and procedures for U.S. Attorneys.[footnoteRef:29] This manual states, 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.[footnoteRef:30] Ultimately, this gives the government the final say and leaves defendants with very few options, which is especially troubling given the adversarial nature of a criminal prosecution.[footnoteRef:31] [27: See id. at 18689.] [28: See Brady v. Maryland, 373 U.S. 83, 87 (1963) (stressing that societys interest in trials extends beyond convicting the guilty).] [29: U.S. Dept of Justice, United States Attorneys Manual 1-1.100 (1997), available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/.] [30: OSullivan, supra note 9, at 877 n.4 (quoting id. at 9-23.214).] [31: Lipanovich, supra note 8, at 18889.]

Although compelled testimony often plays an important part in obtaining a successful result in criminal prosecutions,[footnoteRef:32] courts frequently reject the idea that there is a power imbalance between prosecutors and defendants.[footnoteRef:33] These courts, which include the Second and Third Circuits, note the affirmative obligations (e.g., burden of proof) that prosecutors have, as well as the restrictions they face (e.g., the inability to comment on a defendants choice not to testify).[footnoteRef:34] Effectively, a defendant could be acquitted at trial without presenting any evidence at all, while the prosecution must convince the jury beyond a reasonable doubt of defendants guilt.[footnoteRef:35] Despite the evidentiary standard and inability of the prosecution to compel the defendants testimony, the Ninth Circuit has not dismissed the idea of inequality, and instead posed the argument for defense-witness immunity as a mere hypothetical: [W]here two eyewitnesses tell conflicting stories, and only the witness testifying for the government is granted immunity, the defendant would be denied any semblance of a fair trial.[footnoteRef:36] [32: SeeKastigar v. United States, 406 U.S. 441, 44647 (1972)(noting that immunity statutes are essential to the effective enforcement of various criminal statutes);Murphy v. Waterfront Commn, 378 U.S. 52, 9495(1964) (White, J., concurring) (calling compelled testimony one of the Governments primary sources of information).] [33: See King, Jr., supra note 6, at 175 (examining the unilateral distribution of governmental powers to the prosecutor and the corresponding lack of governmental powers afforded to defendants); see, e.g., United States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980) (dismissing this type of argument as entirely unpersuasive); see alsoUnited States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978)(Due process has never yet been held to require that the defendant be permitted to marshal precisely the same investigative and legal resources as the prosecution....).] [34: Turkish, 623 F.2d at 774; see alsoHerman, 589 F.2d at 1203.] [35: Lipanovich, supra note 8, at 19091.] [36: United States v. Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991) (quotingUnited States v. Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984)).]

2. Protecting Constitutional RightsThe second argument in favor of granting defense-witness immunity focuses on protecting a defendants constitutional rights.[footnoteRef:37] Typically, legal commentators rely upon constitutional arguments to advance their ideas, and the area of defense-witness immunity is no exception.[footnoteRef:38] The right to a fair trial is one of the most important notions underlying the American criminal justice system; one way a fair trial is achieved is through granting defense-witness immunity.[footnoteRef:39] Further support for defense-witness immunity is found in various parts of the Constitution, as well as Supreme Court precedent.[footnoteRef:40] [37: See U.S. Const. amend. VI (providing that an accused has a constitutional right to have compulsory process for obtaining witnesses in his favor); U.S. Const. amend. V, XIV (referring to the due process clause under both amendments, depending on whether the prosecutor represents the state or the federal government).] [38: See, e.g., Howard J. Vogel, The Ordered Liberty of Substantive Due Process and the Future of Constitutional Law as a Rhetorical Art: Variations on a Theme From Justice Cardozo in the United States Supreme Court, 70 Alb. L. Rev. 1473, 154549 (2007) (discussing the formulation of constitutional arguments).] [39: Estelle v. Williams, 425 U.S. 501, 503 (1976) (concluding that the right to a fair trial is a fundamental liberty); Lipanovich, supra note 8, at 18586 (arguing that defense-witness immunity is needed in order to protect a defendants constitutional rights, including the right to a fair trial).] [40: See Lipanovich, supra note 8, at 18591 (referencing Supreme Court cases and constitutional amendments that support granting defense-witness immunity).]

The Sixth Amendment supports defense-witness immunity.[footnoteRef:41] The Sixth Amendment states, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.[footnoteRef:42] In Washington v. Texas, the Supreme Court detailed the Sixth Amendments importance with respect to a defendants case and stated: [41: See U.S. Const. amend. VI.] [42: Id.]

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendants version of the facts as well as the prosecutions to the jury so it may decide where the truth lies.[footnoteRef:43] [43: 388 U.S. 14, 19 (1967). ]

The Supreme Court went further and declared, [t]his right is a fundamental element of due process of law.[footnoteRef:44] [44: Id.]

The Due Process Clauses of the Fifth and Fourteenth Amendments also support defense-witness immunity.[footnoteRef:45] In Chambers v. Mississippi, the Supreme Court held that, [t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the States accusations.[footnoteRef:46] Accordingly, defendants argue that due process requires providing immunity to a defense witness to ensure that the defendant is able to fully present a defense.[footnoteRef:47] Without the immunity power, a defendants due process rights may be violated because witnesses with relevant testimony may refuse to take the stand for fear of future prosecution or may take the stand and assert the Fifth Amendment privilege.[footnoteRef:48] In either situation, the defendants due process rights are violated because the court and the jury will not hear the relevantand sometimes exculpatorytestimony.[footnoteRef:49] [45: See U.S. Const. amend V, XIV.] [46: 410 U.S. 284, 294 (1973) (finding a violation of due process where the court denied the defendants motion to treat his own witness, the man who confessed to the crime the defendant was on trial for, as hostile).] [47: See United States v. Straub, 538 F.3d 1147, 1155 (9th Cir. 2008).] [48: See id. at 1156 (contemplating the problems with denying immunity to defense witnesses); Govt of V.I. v. Smith, 615 F.2d 964, 967 (3d Cir. 1980) (providing an example where the prosecution failed to provide immunity to the defense witness, who ultimately invoked the Fifth Amendment when he took the stand).] [49: See Straub, 538 F.3d at 1155; Smith, 615 F.2d at 967.]

II.The Circuit Split: How to Approach Defense-Witness ImmunityAlthough every circuit court has ruled on the issue of defense-witness immunity, the courts are split on how specifically to deal with it.[footnoteRef:50] Three prominent approaches have surfaced: (1) the Third Circuits effective defense theory; (2) the Second Circuits prosecutorial misconduct majority[footnoteRef:51] approach; and (3) the Ninth Circuits prosecutorial misconduct minority[footnoteRef:52] approach.[footnoteRef:53] However, under any of these judicial approaches, it is very rare for a defendant to receive immunity for a key witness.[footnoteRef:54] [50: See infra Part II.AC. ] [51: This approach has been deemed the majority approach because ten of the twelve circuit courts have the ability to grant immunity if the prosecutor is found to have abused discretion in granting immunity, making this approach the most widely used amongst the circuits. Lipanovich, supra note 8, at 181.] [52: The Ninth Circuits prosecutorial misconduct approach is the minority one since most of the circuit courts use the Second Circuits approach. Id.] [53: See infra Parts IIIV.] [54: See, e.g., United States v. Davidson, No. H-10-201-3S, 2010 WL 3521726, at *4 (S.D. Tex. Sept. 8, 2010)(rejecting the defendants request for witness immunity when the court was unable to locate a decision within the Fifth Circuit where a court found that the government used its immunity privilege to unfairly skew the fact-finding process or where due process or other extraordinary circumstances required the court to grant use immunity to a defense witness.).]

A. The Third Circuits Effective Defense Theory1. Government of Virgin Island v. SmithIn Government of Virgin Island v. Smith, the Third Circuit adopted an approach to defense-witness immunity called the effective defense theory.[footnoteRef:55] In Smith, four defendants were on trial for robbing Roy Phipps (Phipps).[footnoteRef:56] Three of the defendants moved to introduce testimony from Ernesto Sanchez (Sanchez), who previously told the police that he, Scotto, Mon, and Mouth, were the men who committed the crimes against Phipps.[footnoteRef:57] One defendant, Elvis Smith (Elvis), was known as Scotto.[footnoteRef:58] Therefore, Sanchezs statement would have exculpated the other three defendants,[footnoteRef:59] but would have incriminated Elvis.[footnoteRef:60] [55: See615 F.2d 964, 96974 (3d Cir. 1980) (formulating the effective defense theory of defense-witness immunity).] [56: Id. at 966.] [57: Id. at 96667. The nicknames used by Sanchez for the other perpetrators of the crime were not nicknames for three of the defendants. Id.] [58: Id.] [59: Collectively these three defendants will be referred to as the defendants, whereas the fourth defendant, Elvis Smith, will be referred to as Elvis.] [60: Smith, 615 F.2d at 967.]

At trial, the defendants called Sanchez as a witness, hoping that his testimony would reveal his previous statement to the police.[footnoteRef:61] However, Sanchez was uncooperative and asserted the Fifth Amendment privilege against self-incrimination.[footnoteRef:62] The defendants attempted to introduce the statement by declaring Sanchez an unavailable witness under an exception to the hearsay rule.[footnoteRef:63] The government argued that it would be unable to cross-examine Sanchez under those circumstances.[footnoteRef:64] The trial court agreed and did not admit Sanchezs previous statement to the police.[footnoteRef:65] [61: Id.] [62: Id.] [63: Id.] [64: Id.] [65: Id.]

The defendants then requested a grant of immunity for Sanchez.[footnoteRef:66] An authority in the Virgin Island Attorney Generals office agreed to provide immunity for Sanchez as long as the U.S. Attorney consented.[footnoteRef:67] For unknown reasons, this consent was never granted, and the potentially exculpatory evidence which the defen[dants] desired to offer through Sanchez testimony[] was never presented to the jury.[footnoteRef:68] All four defendants were convicted for robbery; the three defendants who had sought to admit Sanchezs statement appealed on the grounds that their due process rights were violated by failure to grant immunity to Sanchez.[footnoteRef:69] [66: Smith, 615 F.2d at 967.] [67: Id.] [68: Id.] [69: Id.]

2. The Third Circuits Effective Defense TheoryThe Smith court acknowledged that withholding exculpatory facts from the jury violates a defendants due process rights.[footnoteRef:70] The Third Circuit understood that a courts power to grant judicial immunity must be limited.[footnoteRef:71] Therefore, the court presented five conditions that must be met before a court may grant immunity: (1) immunity must be properly sought in the district court; [(2)] the defense witness must be available to testify; [(3)] the proffered testimony must be clearly exculpatory; [(4)] the testimony must be essential; and [(5)] there must be no strong governmental interests which countervail against a grant of immunity.[footnoteRef:72] [70: Id. at 970.] [71: Id. at 972.] [72: Smith, 615 F.2d at 972 (drawing on both the Chambers and Herman decisions). See Chambers v. Mississippi, 410 U.S. 284, 297, 302 (1973); United States v. Herman, 589 F.2d 1191, 1204, 1207, 1213 (3d Cir. 1978).]

The Third Circuits approach relies heavily on the third and fourth requirements that the witness testimony must be clearly exculpatory and essential.[footnoteRef:73] The Third Circuit emphasized that a defense witness will be denied immunity if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or if it is found to relate only to the credibility of the governments witnesses.[footnoteRef:74] Ultimately, the Third Circuit was attempting to create a new remedy to protect an established righta defendants right to present an effective defense.[footnoteRef:75] The court acknowledged that the common remedy of granting a new trial would be ineffective in the Smith case because the defendants still would not be able to present the exculpatory evidence.[footnoteRef:76] Thus, the effective defense theory was born.[footnoteRef:77] [73: Smith, 615 F.2d at 972.] [74: Id.] [75: Id. at 971.] [76: Id.] [77: See id. at 972.]

B. The Second Circuits Prosecutorial Misconduct Majority ApproachThe Second Circuits approach focuses on prosecutorial misconduct.[footnoteRef:78] Not surprisingly, every circuit court allows at least the limited availability of defense witness immunity if prosecutorial misconduct can be shown.[footnoteRef:79] [78: See infra Part II.B (referring to the Second Circuit, or prosecutorial misconduct majority approach).] [79: Lipanovich, supra note 8, at 181. Most circuits require that in order to grant witness immunity the level of prosecutorial misconduct must deliberately distort the fact-finding process. Id. at 182. Unsurprisingly, in these circuits defense-witness immunity has never been granted. Id.]

1. United States v. EbbersEbbers was the Chief Executive Officer of the publicly traded company, WorldCom, Inc. (WorldCom).[footnoteRef:80] Between the end of 2000 and the beginning of 2002, Ebbers concealed WorldComs decline in performance by fabricating the companys financial records.[footnoteRef:81] At trial, Ebbers was convicted of conspiracy, securities fraud, and related crimes and sentenced to twenty-five years in prison.[footnoteRef:82] On appeal, he argued that the district court erred in permitting the government to introduce testimony by immunized witnesses while denying immunity to potential defense witnesses who were rendered unavailable to Ebbers by their invocation of the privilege against self-incrimination.[footnoteRef:83] Ebbers further argued, he was denied a fair trial because the government granted immunity only to witnesses whose testimony incriminated him and not to witnesses whose testimony would exculpate him but who would have invoked the privilege against self-incrimination if called to testify.[footnoteRef:84] [80: United States v. Ebbers, 458 F.3d 110, 112 (2d Cir. 2006).] [81: Id.] [82: Id.] [83: Id.] [84: Id. at 117.]

2. Ebbers Prosecutorial Misconduct Majority ApproachIn Ebbers, the Second Circuit drew on its previous decision in United States v. Burns[footnoteRef:85] and set forth the test for determining whether the extent of the prosecutorial misconduct warrants the grant of defense witness immunity.[footnoteRef:86] In doing so, the court stated that such a decision requires considering whether: [85: United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982) (inspiring the Second Circuits approach to defense-witness immunity in Ebbers) .] [86: See Ebbers, 458 F.3d at 118; Burns, 684 F.2d at 1077.]

(1) the government has engaged in discriminatory use of immunity to gain a tactical advantage, or through its own overreaching, has forced the 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.[footnoteRef:87] [87: Burns, 684 F.2d at 1077.]

The Second Circuits approach is a two-prong test.[footnoteRef:88] Essential to this approach is that there must be some type of prosecutorial misconduct or governmental abuse.[footnoteRef:89] Prosecutorial misconduct can occur in two ways: (1) if the prosecutor grants immunity to the prosecution witness and denies immunity to the defense witness with the intent of distorting the fact-finding process;[footnoteRef:90] and (2) if the prosecutor threatens or badgers a potential defense witness in order to discourage him from testifying.[footnoteRef:91] Showing either form of prosecutorial misconduct satisfies the first prong of the Second Circuits approach.[footnoteRef:92] Although, denying immunity to one witness while granting immunity to another does not amount to prosecutorial overreaching per se.[footnoteRef:93] Similarly, there is no prosecutorial overreach when the immunity-seeking witness is a target for future prosecution.[footnoteRef:94] The Second Circuit further explained that this test requires a district court [to] find facts as to the governments acts and motives and then balance factors relating to the defendants need for the evidence and its centrality, or lack thereof, to the litigation.[footnoteRef:95] [88: Ebbers, 458 F.3d at 119.] [89: Id.] [90: Id.; United States v. Angiulo, 897 F.2d 1169, 1192 (1st Cir. 1990); United States v. Shandell, 800 F.2d 322, 324 (2d Cir. 1986); United States v. Todaro, 744 F.2d 5, 10 (2d Cir. 1984).] [91: See Ebbers, 458 F.3d at 119; United States v. Lord, 711 F.2d 887, 891 (9th Cir. 1983); United States v. Morrison, 535 F.2d 223, 229 (3d Cir. 1976). This type of misconduct originated in Webb v. Texas, 409 U.S. 95, 9596 (1972) (per curiam), where a judge continually warned the witness about the penalties of perjury, which forced the witness to invoke the Fifth Amendment. See Carter v. United States, 684 A.2d 331, 341 (D.C. 1996) (en banc) (discussing the prosecutorial misconduct in Webb).] [92: Blissett v. Lefevre, 924 F.2d 434, 442 (2d Cir. 1991).] [93: See id.] [94: Shandell, 800 F.2d at 324; see United States v. Turkish, 623 F.2d 769, 778 (2d Cir. 1980).] [95: Ebbers, 458 F.3d at 118.]

C. The Ninth Circuits Prosecutorial Misconduct Minority ApproachThe Ninth Circuit also focuses on prosecutorial misconduct in its approach to defense-witness immunity,[footnoteRef:96] and it has been coined the prosecutorial misconduct minority approach.[footnoteRef:97] Before United States v. Straub, the Ninth Circuit was unclear about whether a defendant requesting immunity must show that the prosecutors purpose was to distort the fact-finding process, or whether prosecutorial actions that had the effect of distortion were enough to trigger immunity.[footnoteRef:98] Straub clarified how courts in the Ninth Circuit should approach defense-witness immunity.[footnoteRef:99] [96: United States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008) (articulating the Ninth Circuit approach to defense-witness immunity and reinforcing the first approach discussed in this Note, centered on prosecutorial misconduct).] [97: See id. at 1162. Throughout this Note, this approach will be referred to as the Ninth Circuit Approach.] [98: Lipanovich, supra note 8, at 183 (emphasis in original).] [99: 538 F.3d at 1162.]

1. United States v. StraubIn United States v. Straub, police executed a search warrant and arrested Straub at his home.[footnoteRef:100] There, police uncovered marijuana plants and selling bags.[footnoteRef:101] The police investigation discovered that Straub was involved in a wide-ranging and long-standing conspiracy to manufacture and distribute methamphetamine.[footnoteRef:102] Straub was part of a gang known as The White Neck Crew (The Crew) that would unlawfully enter the homes of other drug dealers to steal money and drugs.[footnoteRef:103] Over Straubs five-year involvement, Straub and The Crew committed several robberies, including one where Straub and an accomplice carried and used a firearm in connection with an attempt to rob Robert Garrett and take more than 100 marijuana plants.[footnoteRef:104] Straub purportedly discharged a gun during this robbery.[footnoteRef:105] Ultimately, Straub was charged with conspiracy, possession with intent to distribute, and manufacture of methamphetamine and marijuana, along with charges related to the carrying, using, and discharging of a firearm in connection with the attempted robbery of Robert Garrett....[footnoteRef:106] [100: Id. at 114849.] [101: Id. at 1149.] [102: Id.] [103: Id.] [104: Id.] [105: Straub, 538 F.3d at 1149.] [106: Id. Robert Garrett was shot during the attempted robbery. Id.]

At trial, Straub wanted to impeach the prosecutions star witness, Jacob Adams (Adams), by introducing a prior inconsistent statement through another witness, Mike Baumann (Baumann).[footnoteRef:107] The defense knew Baumann would assert his Fifth Amendment privilege against self-incrimination.[footnoteRef:108] The court did not grant immunity under the use-immunity statute, and Straub was convicted and sentenced to 272 months in prison.[footnoteRef:109] [107: Id. at 1150.] [108: Id.] [109: Id. at 1151; see 18 U.S.C. 6002 (2012).]

On appeal, Straub challenged his conviction, arguing the district court erred in its denial of a request to compel the prosecution to grant use immunity to defense witness Baumann.[footnoteRef:110] The Ninth Circuit agreed and remanded the case, ordering the district court to enter a judgment of acquittal on the shooting charges unless the prosecution granted immunity to Baumann or did not use Adamss testimony on retrial.[footnoteRef:111] [110: Straub, 538 F.3d at 1151.] [111: Id. at 1166.]

2. Straubs Prosecutorial Misconduct Minority ApproachIn Straub, the Ninth Circuit created a new test for defense-witness immunity.[footnoteRef:112] It held that in order to compel use immunity for a defense witness, the defendant must demonstrate that: (1) the defense witness seeking immunity must have relevant testimony; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment[s] self-incrimination protection;[footnoteRef:113] or (b) the prosecution granted immunity to its own witness, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness.[footnoteRef:114] Under either scenario, if the prosecutors actions result in a distortion of the fact-finding process, such that the defendant was denied his due process right to a fundamentally fair trial, then the defense witness must be granted use immunity.[footnoteRef:115] [112: See id.] [113: Id.] [114: Id.] [115: Id.]

AnalysisThe Third, Second, and Ninth Circuit approaches to defense-witness immunity demonstrate the various competing interests at play during a criminal trial.[footnoteRef:116] While the Third Circuit approach articulates the five-factor effective defense theory, the Second and Ninth Circuits focus on the prosecutorial misconducts effect on a defendants ability to defend himself.[footnoteRef:117] The substantial difference between the circuit court approaches to defense-witness immunity, along with the serious constitutional issues involved, demonstrate the need for a universal approach.[footnoteRef:118] [116: See supra Part II.] [117: See supra Parts II.A.2 C.] [118: See infra Part V.]

III.Analysis of the Third Circuit Approach and the Problems with Applying ItA. The Reasoning Behind the Third Circuit ApproachAs previously discussed, the Third Circuit approach, or the effective defense theory, was derived from Government of Virgin Islands v. Smith.[footnoteRef:119] It has been deemed the effective defense theory because it provides federal courts with the inherent power to grant immunity to witnesses whose testimony is essential to an effective defense.[footnoteRef:120] This judicial power is independent of the prosecutors statutory ability to grant immunity to defense witnesses, and should be exercised to protect the fact-finding process that occurs during a trial.[footnoteRef:121] The Third Circuit adopted this approach because it believed that a criminal defendant should not be convicted because a witness, whose testimony would exonerate the defendant, has invoked the privilege against self-incrimination.[footnoteRef:122] It deemed the empowerment of federal courts to grant immunity consistent with other remedies where due process violations have occurred.[footnoteRef:123] Despite its good intent, the Third Circuits motives for creating the effective defense theory fall short of protecting a defendants ability to elicit favorable testimony necessary to ensure a fair trial.[footnoteRef:124] [119: See 615 F.2d 964, 972 (3d Cir. 1980); see also supra Part II.A.] [120: See United States v. Pennell, 737 F.2d 521, 526 (6th Cir. 1984).] [121: See Smith, 615 F.2d at 969.] [122: Pennell, 737 F.2d at 527.] [123: See Smith, 615 F.2d at 971 (discussing high-profile cases granting new trials to protect a defendants due process rights).] [124: See infra Part III.B (analyzing the problems with the Third Circuit approach).]

The effective defense approach attempted to alleviate an impediment to the defendant by acknowledging the unfair effect that withholding exculpatory information can have on a defendants due process rights.[footnoteRef:125] However, it created insurmountable requirements and thus failed to achieve its goal.[footnoteRef:126] Under this approach, judicial immunity is triggered, not by prosecutorial misconduct or intentional distortion of the trial process, but by the fact that the defendant is prevented from presenting exculpatory evidence which is crucial to his case.[footnoteRef:127] This is a challenging burden to meet.[footnoteRef:128] In fact, only five of the forty-six reported decisions from the Third Circuit sided with the defense.[footnoteRef:129] With only about 11% of defendants being awarded immunity so as to create reasonable doubt in the minds of the jury, this approach does not provide defendants with a legitimate tool to present favorable evidence.[footnoteRef:130] Under the faade of protecting defendants constitutional rights, the Third Circuit is able to appear impartial and as though fair trials are regularly conducted, when in reality the Third Circuit is reluctant to elevate the rights of an accused over the governments interests.[footnoteRef:131] Moreover, this approachs requirements permit a prosecutors desire to charge an immunity-seeking defense witness (with a crime or public interest disservice) to offset a grant of immunity.[footnoteRef:132] The fact that courts in the Third Circuit seldom grant immunity to criminal defendants clearly demonstrates that this approachs requirements are unattainable.[footnoteRef:133] [125: Smith, 615 F.2d at 972; see United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990) (noting that the courts power to grant defense-witness immunity, under the effective defense theory, is grounded in a defendants due process right to have exculpatory evidence presented to the jury).] [126: See Angiulo, 897 F.2d at 1191; Smith, 615 F.2d at 972.] [127: Smith, 615 F.2d at 969. This is the main difference between the Third Circuit approach and the other two approaches that focus on prosecutorial misconduct. See United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008); United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982).] [128: Lipanovich, supra note 8, at 181 (discussing defendants difficulty in meeting these requirements).] [129: Id.] [130: See id.] [131: See Earl v. United States, 361 F.2d 532, 53334 (D.C. Cir. 1966) (discussing concerns about a defendants inability to provide immunity to a witness with exculpatory information); Federal Procedure, supra note 19.] [132: Smith, 615 F.2d at 973.] [133: See Lipanovich, supra note 8, at 181.]

B. The Problems Presented by the Third Circuits ApproachThere are three major problems presented by the Third Circuits effective defense theory: (1) it creates a separation of powers issue;[footnoteRef:134] (2) it requires judges to conduct a balancing test;[footnoteRef:135] and (3) it places a high burden on defendants.[footnoteRef:136] [134: Smith, 615 F.2d at 971.] [135: See Lipanovich, supra note 8, at 196.] [136: See id.]

Courts have been reluctant to adopt the Third Circuits effective defense approach to defense-witness immunity for a number of reasons.[footnoteRef:137] First, is the separation-of-powers dilemma.[footnoteRef:138] The separation-of-powers doctrine is a constitutional notion that the three branches of government have different powers and functions.[footnoteRef:139] Specifically, the effective defense approach requires courts to assume inherent authority to grant judicial immunity themselves, creating a separation-of-powers problem because the power to grant witness immunity is of legislative origin, and was granted to the executive branch.[footnoteRef:140] The Third Circuit is alone in its adoption of the effective defense theory, and even acknowledged the potential separation-of-powers problem that this approach poses.[footnoteRef:141] Courts frequently decline to adopt this approach because of the separation of powers problems.[footnoteRef:142] Courts that oppose the Third Circuits approach argue that permitting the judiciary to exercise this type of power, absent approval from the legislature, violates the separation-of-powers principle.[footnoteRef:143] [137: United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991); see Federal Procedure, supra note 19.] [138: Smith, 615 F.2d at 97172; see Federal Procedure, supra note 19.] [139: Phillip B. Kurland, The Rise and Fall of the Doctrine of Separation of Powers, 85 Mich. L. Rev. 592, 593 (1986). The separation of powers is necessary in order to ensure that there is a balanced government. See id.] [140: United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir. 1990).] [141: See Angiulo, 897 F.2d at 1191 (This theory has been rejected ... by virtually every other court that has considered the issue....); Smith, 615 F.2d at 971; see, e.g., United States v. Tindle, 808 F.2d 319, 325 n.4 (4th Cir. 1986) (emphasizing that the courts have criticized the effective defense theory and labeling it the minority approach to defense-witness immunity).] [142: See Mohney, 949 F.2d at 1401.] [143: Angiulo, 897 F.2d at 1191; see, e.g., United States v. Pennell, 737 F.2d 521, 527 (6th Cir. 1984) (pointing out the separation of powers problem presented by the Third Circuits effective defense theory approach).]

Another reason courts criticize the effective defense theory is because it requires judges to conduct a balancing test.[footnoteRef:144] Courts are required to weigh a defendants need for particular witnesses against the prosecutors reasons for not seeking immunity for the witnesses herselfan exercise not well-suited for judicial decision making.[footnoteRef:145] This argument is unsound because at no point should prosecutorial interests outweigh a defendants constitutional right to a fair trial.[footnoteRef:146] Moreover, this argument should not be used as a reason to deny immunity to a defense witness because that would create an open door argument for prosecutors.[footnoteRef:147] Prosecutors would be able to argue that they have an interest in prosecuting the same witness who has the essential and clearly exculpatory information that could be helpful to the defendant, and the court could conclude that the governmental interests outweigh the defendants rights.[footnoteRef:148] This argument is invalid and should never enter into a decision of whether to grant use immunity because then the witness is not ensured absolute immunity, and thus the prosecutor will still be able to charge the witness.[footnoteRef:149] [144: See Angiulo, 897 F.2d at 1191.] [145: Id.; see United States v. Turkish, 623 F.2d 769, 77577 (2d Cir. 1980).] [146: Lipanovich, supra note 8, at 197 (emphasis added).] [147: Id.] [148: See Govt of V.I. v. Smith, 615 F.2d 964, 972 (3d Cir. 1980); Lipanovich, supra note 8, at 197.] [149: 18 U.S.C. 6002 (2012) (providing only that a witnesss testimony will not have full, absolute immunity because the testimony may still be used against him in a future criminal prosecution for perjury, giving a false statement, or otherwise failing to comply with the [use immunity] order).]

Finally, the Third Circuits effective defense theory has been criticized because of the high burden it places on defendants.[footnoteRef:150] The standard requiring the witnesss testimony to be both essential and clearly exculpatory is too challenging for defendants.[footnoteRef:151] This high burden is also problematic because it does not provide enough protection for a defendants rights.[footnoteRef:152] There are many situations where a defense witnesss testimony may be essential or clearly exculpatory, but since both are required the defendant is left without this witnesss testimony.[footnoteRef:153] Due to the obstacles associated with this approach, the Third Circuits effective defense theory should not be adopted or even considered by the U.S. Supreme Court.[footnoteRef:154] [150: Lipanovich, supra note 8, at 196; see supra Part III.B.] [151: Lipanovich, supra note 8, at 196; see Smith, 615 F.2d at 972.] [152: Lipanovich, supra note 8, at 196.] [153: See id.] [154: See supra Part III.B.]

IV.Problems Presented by the Second Circuits Approach The Second Circuits approach to defense-witness immunity is inferior to the Ninth Circuits approach because: (1) it places too high of a burden on the defendant;[footnoteRef:155] (2) it wrongly focuses on the prosecutors intent;[footnoteRef:156] and (3) courts are reluctant to find prosecutorial misconduct.[footnoteRef:157] [155: See United States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988); United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982).] [156: See Lipanovich, supra note 8, at 194.] [157: Id. at 196 (noting that [prosecutorial misconduct] has never been found under the [Second Circuit]s test for defense witness immunity).]

The Second Circuits approach to defense-witness immunity presents a number of problems.[footnoteRef:158] The biggest issue with the Second Circuits approach arises from the high burden of proof a defendant must meet.[footnoteRef:159] A defendant is required to show more than just that the witness unquestionably has exculpatory and material evidence not available from any other source.[footnoteRef:160] A defendant is required to make an additional showing that the prosecutors actions were deliberate and discriminatory.[footnoteRef:161] Thus, the witness will not be granted immunity if the defendant cannot demonstrate that the prosecutor acted deliberately and discriminatorily in denying the witness immunity.[footnoteRef:162] This causes courts to erroneously focus on the prosecutors intent.[footnoteRef:163] This approach will often be an ineffective and inadequate means to ensure a defendants right to a fair trial is met.[footnoteRef:164] Simply because the prosecution did not intend to place a defendant at any sort of disadvantage does not mean that the prosecutors decision did not have that effect.[footnoteRef:165] [158: See id. at 183 (pointing out potential problems with the Second Circuits prosecutorial misconduct approach).] [159: See United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006); Lipanovich, supra note 8, at 183 (referring to the more stringent definition of prosecutorial misconduct, as applied by the Second Circuit).] [160: See, e.g.,United States v. Gottesman, 724 F.2d 1517, 1524 (11th Cir. 1984)([D]istrict courts may not grant immunity to a defense witness simply because that witness possesses essential exculpatory information unavailable from other sources.); Autry v. Estelle, 706 F.2d 1394, 1401 (5th Cir. 1983)(rejecting the Third Circuits notion that judicial immunity could come into play when the defendant is prevented from presenting exculpatory evidence which is crucial to his case) (quotingGovt of V.I. v. Smith, 615 F.2d 964, 969 (3d Cir. 1980)).] [161: Ebbers, 458 F.3d at 119.] [162: See id; Lipanovich, supra note 8, at 183.] [163: See Lipanovich, supra note 8, at 194.] [164: See, e.g., Ebbers, 458 F.3d at 119.] [165: Compare United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (granting immunity when prosecutorial actions have the effect of distorting the fact-finding process), with Ebbers, 458 F.3d at 119 (requiring that the defendant show that the prosecutors actions were a deliberate intent to distort the fact-finding process).]

Finally, the Second Circuits approach fails because federal courts rarely find prosecutorial misconduct.[footnoteRef:166] If courts are hesitant to find prosecutorial misconduct, the Second Circuits approach will be ineffective at ensuring defendants have a fair opportunity to defend against the States accusations.[footnoteRef:167] Similar to the Third Circuit, the Second Circuit approach is flawed because it fails to accomplish its purported goal.[footnoteRef:168] While it attempts to preserve a defendants constitutional rights, the Second Circuit approach regularly sides with the prosecution, thus indirectly diminishing the defendants rights.[footnoteRef:169] [166: See Lipanovich, supra note 8, at 196 (noting that [prosecutorial misconduct] has never been found under the [Second Circuit]s test for defense witness immunity).] [167: Chambers v. Mississippi, 410 U.S. 284, 294 (1973).] [168: See supra Part III.] [169: See Lipanovich, supra note 8, at 196.]

V.The Supreme Court Should Adopt the Ninth Circuit ApproachWhile the Third and Second Circuit approaches are inadequate for a number of reasonsthe frequent insurmountable burden on defendants, the separation of powers clash, the judicial balancing test, the focus on the prosecutors intent, and the courts reluctance to find prosecutorial misconductthe Ninth Circuit approach is best.[footnoteRef:170] The Ninth Circuit approach is the best way to address defense-witness immunity because it is more lenient,[footnoteRef:171] focuses on the effect of the prosecutors actions,[footnoteRef:172] and balances grants of immunity for prosecutors and defendants.[footnoteRef:173] Accordingly, the Supreme Court should address the issue of defense-witness immunity and adopt the Ninth Circuits superior approach.[footnoteRef:174] [170: See supra Parts IIIIV.] [171: Compare United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (broadening prosecutorial misconduct to include conduct that has the effect of distorting the fact-finding process), with United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (limiting prosecutorial misconduct only to conduct that deliberately distorts the fact-finding process).] [172: Compare Straub, 538 F.3d at 1162 (holding prosecutorial misconduct includes actions that have the effect of distorting the fact-finding process), with Ebbers, 458 F.3d at 119 (requiring prosecutorial misconduct be shown by deliberate actions that distort the fact-finding process).] [173: See Straub, 538 F.3d at 1157 (allowing courts to grant immunity for defense witnesses, instead of making the immunity grants dependent on the prosecutors decisions).] [174: See supra Part V.]

A. The Supreme Court Is the Correct Forum to Address the Issue of Defense-Witness ImmunityThe Supreme Courtrather than the legislatureshould address defense-witness immunity.[footnoteRef:175] On many occasions, the Supreme Court has created important rights for criminal defendants, including the Miranda right against self-incrimination.[footnoteRef:176] As a result of criminal defendants marginal place in society, an elected Congress will not represent their interests.[footnoteRef:177] The constitutional foundation for courts to make or implement protections for criminal defendants is found in both the Fifth and Fourteenth Amendment Due Process Clauses.[footnoteRef:178] Opponents to this position argue that defense-witness immunity is an issue that should be dealt with by Congress, but this is unlikely to happen because Congress is incapable of effectively enacting such potentially controversial laws; thus, defendants are left with no alternative.[footnoteRef:179] Accordingly, the Supreme Court must take the responsibility to ensure criminal defendants rights are protected and address the issue of defense-witness immunity.[footnoteRef:180] [175: See Lipanovich, supra note 8, at 197 (arguing that the Supreme Court, and not Congress, should create the defense immunity right).] [176: Miranda v. Arizona, 384 U.S. 436, 46772 (1966) (creating the Miranda rights for criminal defendants). Contra Michigan v. Tucker, 417 U.S. 433, 444 (1974)(claiming that Miranda warnings are not themselves rights protected by the Constitution but [are] instead measures to insure that the [Fifth Amendment] right against compulsory self-incrimination [is] protected).] [177: Lipanovich, supra note 8, at 197 (stating that criminal defendants are not a popular group, and thus they need the Supreme Court to protect their rights since Congress will not).] [178: See U.S. Const. amend. V, XIV; see, e.g.,Chambers v. Mississippi, 410 U.S. 284, 294 (1973)(The rights to confront and cross-examine witnesses and to call witnesses in ones own behalf have long been recognized as essential to due process.).] [179: SeeUnited States v. Lenz, 616 F.2d 960, 963 (6th Cir. 1980)(While use immunity for defense witnesses may well be desirable its proponents must address their arguments to Congress, not the courts.) (citations omitted).] [180: More specifically the Supreme Court should adopt the Ninth Circuits approach to defense witness immunity. See infra Part V.BE.]

B. The Ninth Circuit Presents the Best Approach to Defense-Witness ImmunityThe Ninth Circuits more lenient prosecutorial misconduct approach presents the best answer for defense-witness immunity.[footnoteRef:181] Under the Ninth Circuit approach to defense-witness immunity a defendant is required to show that the immunity-seeking witnesss testimony is relevant.[footnoteRef:182] Further, the defendant must show that the government either: (1) intentionally caused the witness to invoke the privilege against self-incrimination, in order to distort the fact-finding process, or (2) denied immunity to a witness whose testimony would contradict that of a prosecutorial witness, having the effect of distorting the fact-finding process.[footnoteRef:183] This test expands the definition of prosecutorial misconduct by allowing the defendant to show either that the prosecutor intended to distort the fact-finding process or that the prosecutors actions had the effect of distorting the fact-finding process.[footnoteRef:184] This makes the Ninth Circuit approach superior because it offers two ways whereby defendants can obtain immunity for these witnesses.[footnoteRef:185] Having two avenues, both representing circumstances where the defendants witness is unfairly denied immunity, helps preserve the defendants right to a fair trial more than the other circuit approaches.[footnoteRef:186] [181: See United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008); Lipanovich, supra note 8, at 19495 (noting that the Ninth Circuits definition of prosecutorial misconduct is more inclusive than the Second Circuits definition).] [182: Straub, 538 F.3d at 1162.] [183: Id.] [184: Compare id. (broadening prosecutorial misconduct to include conduct that has the effect of distorting the fact-finding process), with United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006) (limiting prosecutorial misconduct only to conduct that deliberately distorts the fact-finding process).] [185: See Straub, 538 F.3d at 1162.] [186: Compare id. at 116162, with Ebbers, 458 F.3d at 119.]

C. The Ninth Circuit Approach Is More Lenient in ApplicationThe Supreme Court should adopt the Ninth Circuit approach because it is more lenient.[footnoteRef:187] This leniency ensures that more defendants have the opportunity to meet the requirements and obtain a fair trial.[footnoteRef:188] While some may argue that the Ninth Circuit approach is too lenient and its requirements are too broad, these opponents are wrong because the approach still provide[s] reasonable limitations on defense witness immunity.[footnoteRef:189] [187: Compare Straub, 538 F.3d at 1162, with Ebbers, 458 F.3d at 119.] [188: See United States v. Wilkes, 662 F.3d 524, 550 (9th Cir. 2011) (reinforcing the Ninth Circuits commitment to an approach that holds prosecutors accountable when the defendant does not receive a fair trial); Straub, 538 F.3d at 1164 (holding that the prosecutors conduct had the effect of distorting the fact-finding process, and, as a result, denying the defendant a fair trial); infra Part V.C (arguing that the Ninth Circuits approach is more lenient than either the Second or Third Circuits approaches).] [189: Lipanovich, supra note 8, at 196 (noting that the Ninth Circuit approach requires that the testimony be relevant and contradict that of a government witness who has been granted immunity, and includes prosecutorial misconduct that has the effect of distorting the fact-finding process).]

Opponents of defense-witness immunity have presented a number of arguments,[footnoteRef:190] with three underlying rationales: (1) the immunity decision should be left to the Executive [Branch], (2) the defense witness immunity will be abused by witnesses practicing cooperative perjury, and (3) the immunity grant will impede a future government prosecution.[footnoteRef:191] However, the arguments advanced against defense-witness immunity are unpersuasive because of the important rights that immunity protects.[footnoteRef:192] [190: See id. at 180, 190 (addressing the various arguments against defense-witness immunity).] [191: Id.; see Kastigar v. United States, 406 U.S. 441, 44647 (1972)(declaring immunity statutes as essential to the effective enforcement of various criminal statutes).] [192: See Ullmann v. United States, 350 U.S. 422, 438 (1956) (emphasizing the importance immunity statutes have in the constitutional landscape).]

Opponents of defense-witness immunity argue that the immunity statutes wording indicates that the Executive Branch is the only branch of government that may grant immunity.[footnoteRef:193] Courts have interpreted this language, many concluding that [w]hile use immunity for defense witnesses may [ ] be desirable . . . [those in favor of defense witness immunity] must address their arguments to Congress, not the courts.[footnoteRef:194] Those opposed to defense-witness immunity have even argued that due to separation-of-powers concerns, prosecutors are effectively insulate[d] from granting defense-witnesses immunity.[footnoteRef:195] These arguments fail because: [193: See 18 U.S.C. 6003(a) (2012) (providing that a United States district court judge may grant immunity, upon the request of the United States attorney).] [194: United States v. Lenz, 616 F.2d 960, 963 (6th Cir. 1980) (finding no authority for defense-witness immunity in the Sixth Amendments compulsory process clause).] [195: United States v. Moussaoui, 382 F.3d 453, 468 (4th Cir. 2004).]

all courtsincluding those that have never found immunityhave cast aside this argument and made it clear that under certain circumstances the refusal to grant immunity to a defense witness would be an abuse of the discretion provided to the [judicial branch of the] government by the immunity act.[footnoteRef:196] [196: Lipanovich, supra note 8, at 180, 191 (emphasis added); see, e.g.,United States v. Washington, 318 F.3d 845, 855 (8th Cir. 2003)(finding that, under certain circumstances where he abuses his discretion, the prosecutor may be compelled to grant immunity). ]

Although, any argument that defense-witness immunity violates the separation-of-powers doctrine is erroneous if courts agree that in principle, and under some circumstances, defense-witness immunity should exist.[footnoteRef:197] In this way, if courts recognize that immunity should exist, they cannot also claim separation of powers problems when reconciling unfair judicial practices.[footnoteRef:198] [197: Lipanovich, supra note 8, at 180, 191.] [198: See id.]

Opponents also argue that defense-witness immunity will cause witnesses to lie and perjure themselves in order to get a friend or accomplice acquitted.[footnoteRef:199] While this concern has muster, it is without merit because this type of situation was directly addressed in the use-immunity statute.[footnoteRef:200] The use-immunity statute carves out an exception where a persons immune testimony may be used against him in a prosecution for perjury; that is, a witness who was previously granted immunity can be prosecuted for perjury if the witness provided false testimony while under immunity.[footnoteRef:201] This eliminates any type of cooperative-perjury argument since a witness who provides false testimony under the use immunity statute may still be prosecuted for perjury.[footnoteRef:202] [199: See, e.g.,Blissett v. Lefevre, 924 F.2d 434, 44142 (2d Cir. 1991)(finding that prosecutors are best equipped to handle grants of immunity because it reduces the possibility of cooperative perjury between the defendant and his witness).] [200: See 18 U.S.C. 6002 (2012).] [201: Id.] [202: See id. (providing that a witnesss immunized testimony may be used against him in a perjury prosecution).]

Finally, the last argument presented by those opposed to defense-witness immunitythat use-immunity grants will impede future prosecutions of the witnessalso fails.[footnoteRef:203] While this argument may have prevailed when courts granted transactional immunity,[footnoteRef:204] Congresss adoption of use immunity renders this argument ineffective.[footnoteRef:205] The Supreme Court has noted that there is little difference between a witness invoking his Fifth Amendment privilege and being granted use immunity, in that use immunity does not restrict the ability to bring future charges any more so than invoking the Fifth Amendment.[footnoteRef:206] While courts may consider the governments interest in a possible future prosecution as a factor against granting immunity to a defense witness, it must again be emphasized that no governmental interest should per se outweigh a defendants constitutional right to a fair trial.[footnoteRef:207] In conclusion, the arguments against granting immunity, while concrete and articulable, are unpersuasive and do not overcome a defendants constitutional rights.[footnoteRef:208] [203: United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006).] [204: Transactional immunity is immunity from prosecution for offenses to which compelled testimony relates, whereas use immunity is full immunity from the use of compelled testimony and evidence derived therefrom. Kastigar v. United States, 406 U.S. 441, 443 (1972).] [205: Compare Earl v. United States, 361 F.2d 531, 533 (D.C. Cir. 1966) (applying a transactional immunity statute, which allows a witness to avoid prosecution for any crimes referenced on the stand), with Ebbers, 458 F.3d at 11822 (2d Cir. 2006) (applying the use immunity statute of 18 U.S.C. 6002, which restricts the amount of immunity a witness receives to only providing that the witnesss testimony will not be used against him in a future prosecution).] [206: Kastigar, 406 U.S. at 462 (We conclude that the immunity provided by 18 U.S.C. 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege.).] [207: See Govt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980)(articulating an approach to defense-witness immunity that can consider the governments interest in denying immunity).] [208: See Lipanovich, supra note 8, at 180, 19095 (deeming a defendants right to a fair trial as more important than any possible arguments against grants of immunity for defense witnesses).]

D. The Supreme Court Should Adopt the Ninth Circuit Approach Because it Focuses on the Effect of the Prosecutors ActionsThe Supreme Court should adopt an approach that accounts for the effect of the prosecutors actions.[footnoteRef:209] In this regard, the Supreme Court should adopt the Ninth Circuits broader view of prosecutorial misconduct because it encompasses actions that have the effect of distorting the fact-finding process as opposed to only those that deliberately and intentionally distort it.[footnoteRef:210] Straub demonstrates exactly the type of problem that can arise from using the Second Circuits narrow and restricted approach to prosecutorial misconduct.[footnoteRef:211] In Straub, it would have been difficult for the defendant to prove the prosecutor had the intent to distort the fact-finding process, even though the prosecutors actions clearly had that effect.[footnoteRef:212] Thus, under the Second Circuits approach, the inability to prove intent on behalf of the prosecutor would guarantee a denial of the defendants immunity request,[footnoteRef:213] even though denying this request would result in a due process violation because the defendant would not be able to defend against the States accusations.[footnoteRef:214] By shifting the focus from intentional prosecutorial misconduct to the effects of the prosecutorial conduct, more defendant-adverse scenarios can be accounted for and less infringement on defendants rights will occur.[footnoteRef:215] [209: See id. at 195 (pointing out the detrimental effects that prosecutorial misconduct can have on a defendant).] [210: Compare Ebbers, 458 F.3d at 119 (requiring that prosecutorial misconduct be shown by deliberate actions that distort the fact-finding process), with United States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008) (holding that prosecutorial misconduct can be proven with actions that have the effect of distorting the fact-finding process).] [211: See Straub, 538 F.3d at 1155 (referring to the district courts ruling, which held that if defendants were required to show prosecutorial misconduct, then Straubs claim would be unsuccessful).] [212: Id. at 1157.] [213: See id.; Lipanovich, supra note 8, at 186.] [214: Chambers v. Mississippi, 410 U.S. 284, 29495 (1973).] [215: See Lipanovich, supra note 8, at 195 (arguing that the effects of prosecutorial misconduct can have far more detrimental effects to a defendant than solely prosecutorial intent).]

Additionally, intentional prosecutorial misconduct should not be a requirement under the defense-witness immunity approach that the Supreme Court ultimately adopts.[footnoteRef:216] The Second Circuits reliance on prosecutorial misconduct as a necessary requirement in order for a defendant to receive a fair trial is misplaced.[footnoteRef:217] Granting immunity to a defense witness should be based upon whether the witnesss proffered testimony is relevant and supports the defendants case.[footnoteRef:218] A defense witnesss immunity, and the defendants due process rights, should not be based on a defendants ability to prove a prosecutors deliberate misconduct.[footnoteRef:219] Defense-witness immunity grants should depend on the testimonys relevance and the effect of the prosecutors actions (i.e., selective immunity or the effect of distorting the fact-finding process).[footnoteRef:220] Since the Ninth Circuits approach focuses on the effect of the prosecutors actions, whereas the Third and Second Circuit approaches do not, the Supreme Court should adopt the Ninth Circuits approach.[footnoteRef:221] [216: See id. at 196 (Prosecutorial misconduct should not be a requirement for the granting of immunity.).] [217: See id. at 19596 (opining that one problem with the Second Circuits approach is its reliance on prosecutorial misconduct).] [218: See Straub, 538 F.3d at 1157 (requiring that the defense witness seeking immunity have relevant testimony).] [219: See id. at 1161 (The right to compel use immunity because of selective denial of immunity is a right to due process... where the Constitution focuses our attention on the fundamental fairness of the trial more than on the intentionswhether good or badof the prosecution.); Chambers, 410 U.S. at 294 (noting that a defendants due process rights amount the ability to put on a full defense); Lipanovich, supra note 8, at 19596 (arguing that a defendants due process rights should be protected by an approach that grants immunity to witnesses when the prosecutors misconduct has the effect of distorting the fact-finding process).] [220: See Straub, 538 F.3d at 115658 (holding that a defendant is denied a fair trial if the prosecution uses selective immunity, by granting immunity to a government witness, but denies it to a defense witness whose testimony directly contradicts that of the government witness, or when the prosecutor commits misconduct that has the effect of distorting the fact-finding process).] [221: See supra Part V.B.]

E. The Ninth Circuit Approach Balances the Grants of Immunity for Prosecutors and DefendantsThe Supreme Court should adopt the Ninth Circuits approach because it creates the perfect balance between granting immunity to prosecution and defense witnesses.[footnoteRef:222] Opponents argue that a criminal prosecution cannot be a place of equalized power because prosecutors have many affirmative obligations.[footnoteRef:223] Accordingly, these opponents readily reject any arguments advancing the idea that there should be a more equal balance of power between prosecutors and defendants.[footnoteRef:224] Despite these counterarguments, the idea of equal power between the two sides cannot be so easily rejected.[footnoteRef:225] [222: See Straub, 538 F.3d at 1157 (allowing courts to grant immunity for defense witnesses instead of making the immunity grants dependent on the prosecutors decisions).] [223: See United States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980).] [224: E.g., id.; see also United States v. Herman, 589 F.2d 1191, 1203 (3d Cir. 1978) (Due process has never yet been held to require that the defendant be permitted to marshal precisely the same investigative and legal resources as the prosecution....).] [225: See Lipanovich, supra note 8, at 195 (Despite the various arguments against defense witness immunity... none overcome the need to ensure a fair trial for every defendant.).]

The Ninth Circuit approach acknowledges a power balance between prosecutors and defendants, because it holds the prosecutors accountable in grants and denials of immunity while it also provides another way for defendants to get immunity for their witnesses (i.e., grants of immunity by the court).[footnoteRef:226] One of the ways the Ninth Circuits approach equalizes the power imbalance is through its standard of proof.[footnoteRef:227] The Ninth Circuits approach requires only that the testimony be relevant, compared to clearly exculpatory and essential to the defense.[footnoteRef:228] This standard still maintains that the testimony be relevant and that it conflicts with an immunized government witness, but lowers the standard from absolute terms (e.g., clearly and essential).[footnoteRef:229] This provides a defendant with another option to defend himself because a key defense witness, who would never be granted immunity under the Second or Third Circuits approaches, may be granted immunity under the Ninth Circuit approach.[footnoteRef:230] The witness may have testimony that is relevant or exculpatory, but this testimony would not be allowed under the Second Circuit approach unless the defendant could show intentional prosecutorial misconduct.[footnoteRef:231] This same testimony would also be barred under the Third Circuits approach because the testimony not only has to be exculpatory and essential, but the governments interests in not granting immunity can also override a grant of immunity.[footnoteRef:232] Therefore, the Ninth Circuit is the best approach because: it enables the defendant to put on a full defense; provides the jury with more information to use during their fact-finding process; and, under those circumstances, it is more likely that the defendant receives a fair trial.[footnoteRef:233] [226: See Straub, 538 F.3d at 1157 (providing for court-granted use immunity to defense witnesses meeting certain criteria).] [227: Id. (providing a prosecutorial misconduct approach to defense-witness immunity).] [228: Compare id. (requiring only relevance), with United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006) (citations omitted) (employing a prosecutorial misconduct approach which requires that testimony of the witness be material, exculpatory and not cumulative), and Govt of V.I. v. Smith, 615 F.2d 964, 974 (3d Cir. 1980)(explaining that the effective defense theory requires defense-witness immunity when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity). This more flexible relevance standard predates Straub. See United States v. Westerdahl, 945 F.2d 1083, 1086 (9th Cir. 1991).] [229: Lipanovich, supra note 8, at 180, 196.] [230: Compare Straub, 538 F.3d at 1157 (requiring only relevance), with Ebbers, 458 F.3d at 118 (employing a prosecutorial misconduct approach which requires that testimony of the witness be material, exculpatory and not cumulative), and Smith, 615 F.2d at 974(explaining that the effective defense theory requires defense witness immunity when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity).] [231: See Ebbers, 458 F.3d at 118 (using a prosecutorial misconduct approach which demands that the witnesss testimony be material, exculpatory and not cumulative, and that the defendant show that prosecutorial misconduct occurred).] [232: See Smith, 615 F.2d at 974 (explaining that the Third Circuits approach to defense-witness immunity requires testimony that is is clearly exculpatory and essential to the defense case, as well as it be a situation where the government has no strong interest in withholding use immunity).] [233: See Lipanovich, supra note 8, at 180, 18485.]

ConclusionIn order to ensure a defendants constitutional rights are protected and not infringed upon, the Supreme Court should adopt the Ninth Circuits defense-witness immunity approach. While three approaches to defense-witness immunity have emerged, the Second and Third Circuit approaches fail to address the paramount interest at stakea defendants constitutional rights, especially the right to a fair trial. The Second Circuits approach is too focused on requiring the defendant to prove prosecutorial misconduct. The Third Circuits approach has too high of a burden. Since both the Second and Third Circuit approaches are inadequate, the Supreme Court should adopt the approach formulated by the Ninth Circuit. The Ninth Circuits approach is superior because it expands the idea of prosecutorial misconduct, broadening the Second Circuits definition, and provides only that the testimony be relevant, as opposed to the stringent clearly exculpatory and material standards set forth by the Third Circuit. While there may be concerns regarding the expansion of defense-witness immunity, none of these concerns override the defendants constitutional right to a fair trial where the defendant can fully put on a defense. In order to ensure a defendants due process rights are protected, the Supreme Court must adopt the Ninth Circuits approach to defense-witness immunity.

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