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Types of Immunity in a Federal Criminal Case

If you watch a lot of crime television you’ve probably heard more than one fictional arrestee say, “I want immunity” to investigators. When they do, the audience understands he’s not going to be prosecuted, and that he’ll probably enter the witness protection program.

But there is more than one type of immunity, and not all of them protect you from prosecution.

Use Immunity

Use immunity is the weakest form of immunity you can have. When you have this immunity, anything you say to investigators can’t be used against you in a criminal procedure.

You might also hear the term “derivative use immunity.” Derivative use allows investigators to use what you say to go find other evidence against you. If, for example, you mention that you kept two sets of books then the government can go looking for your other ledger.

They can also use what you say against you if you later say something entirely different in court.

See also: 5 Mistakes to Avoid When You’re Under Investigation.

Transactional Immunity

In this form of immunity, the government promises they won’t use what you say against you, even to find other evidence against you.

It’s rare for anyone to face prosecution after this type of immunity is granted. While it’s possible, the government would have to prove any evidence they had didn’t come from what you told them. This is often way too difficult, and is often too much trouble.

It’s difficult to get prosecutors to agree to offer this form of immunity.

Statutory Immunity

This is the strongest form of immunity you can get. This form of immunity means a judge has ordered you to speak. But because you have a 5th amendment right, the judge also orders that what you say can’t be used either directly or indirectly.

Immunity Caveats

Keep in mind that the Federal Government and the State of New York are two separate entities. Immunity at the federal level doesn’t always mean immunity at the state level. The only way it’s guaranteed is if you’re being charged at a federal level for something that is not a crime in your state.

A good attorney can sometimes get you immunity from both entities. The State of New York offers all the same sorts of immunity the federal government does.

The other thing you need to remember is if you commit perjury while seeking immunity you can lose it.

See also: 5 Mistakes to Avoid When You’re Under Investigation By the Federal Government.

Never pursue an immunity agreement without your attorney present. A good federal criminal attorney can help you navigate immunity and help you get the best deal possible.