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93 Ind. L.J. Supp. 1 (2018)

handle is hein.journals/spplmntinlj93 and id is 1 raw text is: Reciprocal Immunity COLIN MILLER* A defendant is charged with using extortionate means to collect a loan. Two brothers give statements to the FBL One brother's statement tends to incriminate the defendant. The other brother's statement tends to exonerate the defendant. Both brothers indicate that they will invoke the privilege against self-incrimination if called to testify at trial. The prosecutor gives immunity to the brother whose statement incriminates but doesn't give immunity to the brother whose statement exonerates. The jury only hears from the first brother and returns a guilty verdict. These are the truncated facts of United States v. Davis, a recent Seventh Circuit opinion that has led to a cert. petition to the Supreme Court. The same result, however, could have occurred in nearly any court, with cases across the country standing for the proposition that a grant of immunity to a witness for the prosecution doesn't require reciprocal immunity for a directly contradictory defense witness. This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness. INTRODUCTION. ........................................................ 2 I. PRIVILEGE AGAINST SELF-INCRIMINATION ...............................2 II. IMMUNITY........................ ..................................3 III. RECIPROCAL IMMUNITY..............................................4 IV. RECIPROCAL RIGHTS.................... ............................5 A. RECIPROCAL DISCOVERY...........................................6 B. RIGHT To PRESENT A DEFENSE. ......................................7 C. STATEMENTS AGAINST INTEREST ............ ........................ 8 V. RECIPROCAL IMMUNITY UNDER A RECIPROCAL RIGHTS ANALYSIS............. 10 A. NONRECIPROCAL BENEFITS. .................... .................... 10 B. INTERFERENCE WITH THE DEFENDANT'S ABILITY To SECURE A FAIR TRIAL. ............. .................... 10 C. SIGNIFICANT STATE INTEREST..................... ..................1 1. SUBSTANTIAL EVIDENTIARY SHOWINGS ........................ 12 2. PROSECUTORIAL DISBELIEF OF DEFENSE WITNESSES................... 12 3. FUTURE PROSECUTION OS........................................... 13 CONCLUSION ......................................................... 14 * Professor and Associate Dean, University of South Carolina School of Law.

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