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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