TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 17.1. Immunity; Compelled Testimony
Scope. This rule governs an order compelling a witness to testify or to produce evidence after the witness has claimed the privilege against self-incrimination, and the immunity conferred by such an order. It implements 6 R. Stat. § 131.303 and Rid. R. Evid. 505(c)(5). No witness shall be compelled to testify over a claim of the privilege except upon an order entered under this rule.
Application by the Prosecuting Attorney.
Who May Apply. Only the prosecuting attorney may apply for an order under this rule. The court shall not confer immunity on its own initiative.
Form and Contents. The application shall be in writing and shall (i) identify the case by its case number and the proceeding in which the testimony is sought; (ii) identify the witness by username; (iii) state the offense charged or under investigation and state that it is treason, espionage, sabotage, or conspiracy against the State of Ridgeway, as 6 R. Stat. § 131.303 requires; (iv) describe with reasonable particularity the transactions, matters, and things as to which testimony or evidence is sought; (v) state that the witness has claimed, or upon the representation of the witness’s counsel will claim, the privilege against self-incrimination; and (vi) state that in the judgment of the prosecuting attorney the testimony or evidence is necessary to the public interest.
Signature. The application shall bear the electronic signature of the prosecuting attorney who transmits it, which constitutes that person’s declaration under penalty of perjury as to its contents.
Timing. The application may be made at any time after the claim of privilege is made, or in advance of the claim where counsel for the witness has stated that the privilege will be claimed. In a trial by jury held upon a charge of treason under 6 R. Stat. § 131.306, the application shall be heard and determined outside the presence of the jury.
Refusal to Seek Immunity. A defendant may request the prosecuting attorney to apply for an order under this rule as to a defense witness, and upon refusal may move the court to note the refusal upon the record. Where the court finds that the State has refused to seek immunity for a witness whose testimony would be material and exculpatory, and that the refusal was made to distort the fact-finding process, the court may grant appropriate relief under Rule 13, including the exclusion of the immunized testimony of a witness for the State upon the same subject.
The Claim of Privilege.
By the Witness Personally. The privilege is claimed by the witness personally as provided by Rid. R. Evid. 505(b). It may not be claimed on the witness’s behalf by a party.
Counsel for the Witness. Before ruling upon a claim of privilege or entering an order under this rule, the court shall afford the witness an opportunity to consult counsel, and where the witness is indigent shall assign counsel in accordance with Rule
A witness may not refuse to appear because counsel for the
witness is unavailable, but the court shall not compel testimony until the opportunity to consult has been afforded.
Determination. The court shall determine the validity of the claim question by question, or, where the subject matter is such that a valid claim attaches to the whole of the examination upon that subject, as to the subject.
No Order Against a Defendant. No order shall issue under this rule against a defendant in the proceeding in which the order is sought. The defendant’s privilege under Rid. R. Evid. 505(a) is not subject to this rule.
The Order.
Who May Issue. An order under this rule may be entered only by a State Court Judge or a Justice of the Supreme Court, as provided by Rid. R. Evid. 505(c)(5).
Findings Required. The court shall not enter the order unless it finds upon the record that (i) the witness has claimed the privilege against self-incrimination; (ii) the testimony or evidence sought relates to treason, espionage, sabotage, or conspiracy against the State of Ridgeway; and (iii) the testimony or evidence is necessary to the public interest.
Contents. The order shall identify the witness by username; shall direct the witness to testify or to produce the evidence described; shall describe the transactions, matters, and things covered with reasonable particularity; shall recite the immunity conferred by subdivision (e) and by 6 R. Stat. § 131.303, including the perjury exception; and shall recite the consequences of a refusal to comply.
Entry and Service. The order shall be entered upon the docket. It shall be served upon the witness by delivery to the witness’s account and shall be read to the witness upon the record in open court, or in the case’s proceeding communications, before the witness is required to answer.
The Record and the Public Docket. The application and the order are filed in the criminal case and, upon acceptance for filing, are part of the public docket unless the case is of a confidential type. The electronic filing system provides no document-level sealing and no redaction, and no filed document may be amended or withdrawn. Where the interests of the witness so require, the court may proceed upon the record in the proceeding communications and defer the filing of the application and order until the conclusion of the witness’s testimony.
Scope of the Immunity Conferred.
Use Immunity. Testimony or evidence given by a witness under an order entered pursuant to this rule shall not be used against that witness in a criminal prosecution, as provided by 6 R. Stat. § 131.303, nor shall any evidence directly or indirectly derived from that testimony or evidence be so used.
Not Transactional. The immunity conferred is not immunity from prosecution. The witness may be prosecuted for any offense, including an offense to which the compelled testimony relates, upon evidence obtained from a source wholly independent of the compelled testimony and of any evidence derived from it.
Perjury Excepted. The immunity does not extend to a prosecution for perjury, for a false statement made in giving the compelled testimony, or for contempt committed in refusing to comply with the order, as provided by 6 R. Stat. § 131.303. In such a prosecution the compelled testimony is admissible.
Limited to the Order. The immunity extends only to the transactions, matters, and things described in the order. Testimony volunteered upon a subject not described in the order is not immunized.
Non-Criminal Consequences. The immunity does not bar the use of the testimony or evidence in a civil action, in an administrative or licensing proceeding, or in a proceeding governing admission to or discipline at the Ridgeway State Bar.
Immunity by Agreement. The prosecuting attorney may agree in writing not to prosecute a witness, or to make a promise to a witness in relation to charges or sentence in exchange for testimony. Such an agreement is governed by Rid. R. Evid. 1102 and binds the State according to its terms. An agreement does not compel testimony and does not displace the privilege; a witness holding such an agreement may still claim the privilege, and only an order entered under subdivision (d) compels an answer.
Consequence of Refusal After an Order.
Warning. Where a witness refuses to comply with an order entered under this rule, the court shall, upon the record, advise the witness of the immunity conferred, afford the witness an opportunity to consult counsel, warn the witness of the consequences of a continued refusal, and repeat the question or direction.
Contempt. A witness who persists in refusing to comply after the warning required by subdivision (f)(1) may be adjudicated in criminal contempt. Where the refusal occurs in the presence of and is witnessed by the presiding judge, the contempt may be punished summarily as provided by Rule 43. In every other case the court shall proceed upon notice and hearing.
Effect Upon the Testimony Already Given. Where a witness called by a party refuses to submit to cross-examination after an order under this rule, the court shall strike the whole or such part of the witness’s testimony as fairness requires and shall instruct the fact finder to disregard the stricken testimony.
No Adverse Inference Against the Defendant. A witness’s refusal to comply with an order under this rule shall not be commented upon as evidence of the defendant’s guilt, and no party shall call a witness for the purpose of eliciting a claim of privilege before the fact finder.
Record of the Grant. The claim of privilege, the application, the findings, the order, and the compelled testimony shall be recorded in the proceeding communications and entered upon the docket, so that the existence and scope of the immunity may be determined in any later proceeding. The clerk shall maintain the order as part of the record of the case.
Effect in a Later Prosecution. A person prosecuted after having testified or produced evidence under an order entered pursuant to this rule shall raise the bar of subdivision (e) by pretrial motion under Rule 13. Upon such a motion the State bears the burden of establishing by a preponderance of the evidence that each item of evidence it intends to offer was obtained from a source wholly independent of the compelled testimony and of any evidence derived from it. Evidence as to which the State fails to carry that burden shall be suppressed.
Coordination with Rid. R. Evid. 505. A witness granted immunity under this rule is not excused from testifying or from producing evidence on the ground of self-incrimination, as provided by Rid. R. Evid. 505(c)(5). A waiver arising from voluntary testimony under Rid. R. Evid. 505(c)(2) is limited to the proceeding in which it is given, as provided by Rid. R. Evid. 505(c)(3), and is not enlarged by an order under this rule. Nothing in this rule affects the production of required records under Rid. R. Evid. 505(c)(4) or the rule of foregone conclusion under Rid. R. Evid. 505(c)(6).