133.3Grants of Immunity

Overview

When a defendant pleads guilty pursuant to a plea agreement and agrees to testify against co-defendants, he or she typically is insulated from the risk of self-incrimination. The bar against double jeopardy prevents the defendant from being re-prosecuted for the offense for which he or she has been convicted. Concerns about self-incrimination may still arise, however, in relation to uncharged offenses. Such concerns also may arise when the state seeks to elicit testimony from an unindicted co-conspirator. North Carolina law allows “a superior court judge, upon application of the district attorney” to grant immunity to witnesses who testify in criminal trials or before grand juries. See G.S. 15A-1051 through 1055. Upon a grant of immunity, the witness can be ordered to testify. Failure to comply is punishable as contempt. For more information, see the related entry on Contempt. 

The immunity provided by G.S. 15A-1051 is “use immunity,” which was approved by the United States Supreme Court in Kastigar v. United States, 406 U.S. 441 (1972). Use immunity consists of a promise not to prosecute a witness based on evidence derived from the witness’s testimony or any leads flowing from that testimony. Unlike the “transactional immunity” conferred by a former version of G.S. 15A-1051 (1985), use immunity still permits prosecution of the witness on matters covered in his or her testimony, as long as the prosecutor shows that the evidence used for that prosecution was gathered independently of the information provided by the witness. See Kastigar, 406 U.S. 441 (1972).

Grant of Immunity in Court Proceedings

If a witness is to testify or produce information described in G.S. 15A-1051(c) for a trial court under a grant of immunity, the grant of immunity must be issued by a superior court judge pursuant to G.S. 15A-1052 under the following conditions:

1. The district attorney must apply for an order before a superior court judge (note that only the elected district attorney has authority to apply for immunity order). See G.S. 15A-1052, Official Commentary.
2. The application must be in writing or be recorded and transcribed in open court.
3. The district attorney must inform the Attorney General of the circumstances and his or her intent to make an application. See G.S. 15A-1052, Official Commentary.
4. The witness must have refused (or apparently will refuse) to testify on Fifth Amendment grounds. The order may be issued prior to the witness’s assertion of his Fifth Amendment privilege, but does not become effective until the person actually asserts the privilege and the person presiding over the hearing communicates the order to him. See G.S. 15A-1051(b), Official Commentary.
5. The trial judge must inform the jury of the grant of immunity before the witness testifies, and must instruct the jury during the final charge that the witness is an interested witness. See G.S. 15A-1055. However, the judge is not required to give the details of the grant of immunity. See State v. Hardy, 293 N.C. 105 (1977).
6. The immunity order should “spell out the exact questions or subject-matter area as to which the witness is compelled to testify.” See G.S. 15A-1052, Official Commentary.

Grant of Immunity Before the Grand Jury

If a witness is to testify or to produce information described in G.S. 15A-1051(c) for grand jury proceedings under a grant of immunity, the grant of immunity must be issued by the presiding or convening superior court judge pursuant to G.S. 15A-1053 and 15A-623, under the following conditions:

1. An application may be made only after the foreperson of the grand jury informs the district attorney that the witness has asserted his privilege against self-incrimination, and the district attorney determines that the testimony or other information is necessary to the public interest. G.S. 15A-1053(b). Unlike G.S. 15A-1052, this requirement appears to bar the district attorney from obtaining an advance order in anticipation of a witness asserting his privilege, despite the express authorization granted in G.S. 15A-1051(b). See G.S. 15A-1052, Official Commentary.
2. Upon receiving notice from the foreperson, the district attorney may then apply for an order from the presiding or convening superior court judge, compelling the witness to testify or produce the requested information. G.S. 15A-1053(a).
3. The application must be in writing, and filed as part of the permanent records of the court. G.S. 15A-1053(a).
4. The district attorney must inform the Attorney General of the circumstances and his or her intent to make an application. G.S. 15A-1053(b).
5. The immunity order should “spell out the exact questions or subject-matter area as to which the witness is compelled to testify.” See G.S. 15A-1052, Official Commentary.

Agreements Not to Prosecute, Charge Reductions, or Sentence Concessions

In addition to granting immunity as described above, a prosecutor is also expressly authorized to: (i) agree not to prosecute a suspect; (ii) make charge reductions; or (iii) recommend sentence concessions in exchange for truthful testimony, pursuant to G.S. 15A-1054. When such an agreement is made, the prosecutor must give the defense written notice of the details of the agreement a reasonable time before the trial. See State v. Lowery, 318 N.C. 54 (1986). The remedy for violation of the notice requirement is granting the defendant a recess rather than suppressing the evidence. See State v. Arnold, 314 N.C. 301 (1985); State v. Woods, 307 N.C. 213 (1982); State v. Brooks, 83 N.C. App. 179 (1986). When such an agreement involves sentencing recommendations, the procedures described in G.S. 15A-1023 must be followed.

An important distinction between formal grants of immunity under G.S. 15A-1052 and plea arrangements or sentencing recommendations made under G.S. 15A-1054 is that the trial judge is required to inform the jury of a grant of immunity before the witness testifies and to give the jury an interested witness instruction (N.C.P.I. Crim.—104.21). Plea arrangements and concessions made under G.S. 15A-1054, by contrast, do not require particular jury instructions absent a specific request from defendant. See State v. Bare, 309 N.C. 122 (1983); State v. Williams, 305 N.C. 656 (1982); State v. Hicks, 60 N.C. App. 718 (1983); State v. Aldridge, 67 N.C. App. 655 (1984).