About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

120 S. African L.J. 373 (2003)
The Parameters of Witness Indemnity: A Review of Section 204 of the Criminal Procedure Act

handle is hein.journals/soaf120 and id is 383 raw text is: THE PARAMETERS OF WITNESS INDEMNITY A REVIEW OF SECTION 204 OF THE CRIMINAL PROCEDURE ACT C THEOPHILOPOULOS* Attorney, Johannesburg 1 INTRODUCTION The procedural safeguards awarded to the criminal defendant within the accusatorial-adversarial system may sometimes present a formidable obstacle to a successfil prosecution.' In particular, the witness privilege against self-incrimination is open to criticism because of the strong evidentiary barrier it creates and the inhibiting effect it has on the state's ability to compel witness testimony in court. There is an obvious need to substitute or supplement the witness privilege and for this purpose a variety of common- law and statutory indemnity devices have been developed.2 A grant of indemnity is an effective prosecutorial tool that obliges the witness, usually an accomplice or an accessory, to testify, despite the self-incriminatory nature of the testimony. Indemnity is a self-serving arrangement whereby the prosecu- tion undertakes to desist in pursuing a criminal sanction against the witness in exchange for truthful testimony. Within the parameters of the indemnity grant the witness privilege loses its proscriptive force. An indemnity grant is only effective against testimony protected by the privilege against self- incrimination and cannot be used against the witness who bases a refusal to testify on other evidentiary privileges.3 The witness is immunized only for those crimes to which the testimony relates and not for all crimes. Indemnity is a criminal protection and offers no immunity against civil liability. Generally an indemnity is granted only when the witness's testimony is capable of materially assisting the prosecution in procuring evidence with which to prove a crime. The indemnity grant is designed to arrive at a balanced and rational accommodation between the two fundamental imperatives of the accusatorial system, namely the state's need to secure * BSc LLB LLM LLD (SA). An indemnity grant is therefore an effective government tool in the war against organized crime and white-collar crime. 2 John Henry Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common Law (1988) vol 8 S 2281. 3 Indemnity has no application to marital, legal, professional or state privilege.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most