Most of us have an idea what “immunity” is. But the law is a funny and complex thing. The law twists and turns to the degree that we need highly educated criminal defense attorneys to explain it to us. Most of us think immunity is just a way for one criminal to get off scot free while he sends his partners in crime up the river. But there is much more to it than that. How far does immunity go? How much “protection” is given to the partner who was ready to testify? Below, our criminal defense lawyers explain.

What is Transactional Immunity?

There are two different kinds of immunity. There is Transactional Immunity which is the broadest sense of the term. It is sometimes called blanket immunity because it “covers all.” Transactional Immunity can be offered by state or federal prosecutors. This is when the prosecution agrees not to use the statements someone makes in court or any evidence that stems from those statements against the person providing testimony.

For example, say Tom and Bob hold up a convenience store. Tom was driving the car, but never entered the store. In the process of the robbery, Bob shoots and kills the clerk. If found guilty, both men are guilty of robbery and murder. The prosecutor may offer Tom immunity to testify that they robbed the store and he saw Bob shoot and kill the clerk. In this case, Tom will not be prosecuted for the crime and Bob will probably get the maximum penalty.

However, immunity does not prevent the prosecution from prosecuting Tom if new evidence is found against him that was not derived from his testimony. If it was later found that Tom and Bob had robbed another store a week later, Tom is not immune from those charges. That robbery was a separate crime, and nothing from the testimony would be used to prosecute it. Tom is going to be charged.

What is “Use and Derivative Use” Immunity?

Use and derivative use immunity are also used by state and federal prosecutors. With this type of immunity, the prosecutor cannot use anything he testifies to against him. It is used to provide details of a case, but the effect on the witness would be as if he did not testify at all. This type of immunity does not stop the prosecution from using other evidence against him. If there are other witnesses, videos, or other evidence that indicated the witness broke the law, that evidence can be used to try him. If the evidence did not result from his actual testimony, it is allowed.

We all want to see criminals pay for their actions. However, there are times when the justice system simply does not have enough proof to send someone to prison. In America, we have protection against being convicted without evidence. In some cases, the judgment call is made that it is better to let a lesser criminal slide to get the evidence needed to take a dangerous person off the streets.