Does immunity void the Fifth Amendment?

Question

There's a scene in 'The Blacklist' where a character is being interviewed about having been subpoenaed to testify in front of a grand jury. His lawyer quickly jumps in to say that his client will be taking the fifth to every question that is asked. After that, the investigator/prosecutor says "there's no need for that because you've been given immunity" and the lawyer tells him that due to being given immunity, he cannot take the fifth. So, is it true that being given immunity from prosecution removes your right to take the fifth, even if you're asked about something extremely self-incriminating?

Answer 1

More than "removing your right to the fifth", it "makes moot the fifth."

The fifth gives you a right to not be forced to self-incriminate, so the state cannot force you to confess to support its prosecution.

But you have immunity. You cannot be prosecuted for whatever you say.

So you are not being incriminating yourself. Whatever you admit, cannot be used to against you.

And it is not that it is not necessary. It is that it is not allowed. With immunity, you are just another witness with "no skin in the game." As such, you can be forced to declare, and can be prosecuted if you refuse to do so or if you commit perjury.

Of course, even with immunity, you may feel uncomfortable making public certain details of your life. But that is not legally relevant and, after all, other witnesses may be required to explain some things they would prefer not to (as long as it does not imply an admission of a crime).

In other words: with the fifth, you are not required to declare or to answer certain questions in order to protect yourself from prosecution. With immunity, you are protected even if you make those statements.

TLDR: Immunity gives you everything (and more) than the fifth ammendment gives you.

Answer 2

Many states offer transactional immunity. (The Federal government does not, however.)

If you have just been given immunity unconditionally, then it is true that it makes the Fifth Amendment moot.

However, a more likely scenario, in states where it is allowed, is that prosecutors will offer immunity in exchange for your testimony. Prosecutors are much more likely to offer immunity with the goal of “catching a bigger fish” rather than just offering it for no reason.

If you agree to that deal, your immunity is conditional on your testimony. You do still have your Fifth Amendment rights, but if you exercise them, you broke the deal, and the prosecutors can potentially charge you for the crime you were offered immunity for.

Answer 3

Short answer: Yes. The Fifth Amendment only protects against being required to give testimony that could incriminate oneself. If someone has immunity, then nothing they say can incriminate themself, so the Fifth Amendment doesn't apply. Your condition "even if you're asked about something extremely self-incriminating" doesn't apply, because once a witness has immunity, nothing they say is, legally speaking, incriminating at all.

There are two main types of immunity: transactional immunity and use immunity.

In transactional immunity, the government lays out a set of parameters of crimes such that the witness is immune from prosecution for. For instance, the government might say "You are immune from prosecution for any crime related to the robbery of First National Bank on Jan 1 2024". This is similar to pardon, except that pardons are usually (recent events notwithstanding) given out after prosecution, and transactional immunity is, as they name implies, used in quid pro quo deals to reward a witness for testifying. Like with transactional immunity, a witness who has received a pardon cannot claim Fifth Amendment privileges. cite

If a witness has transactional immunity, then the Fifth Amendment doesn't apply to anything relating to the parameters of the immunity. It does, however, apply to any testimony that doesn't fall under the parameters, so a witness accepting this immunity needs to be careful to only provide testimony within those parameters. For instance, in the example I gave above, the witness could not refuse to answer the question "Did you help John Smith rob the First National Bank on Jan 2024?", but they can, and should, refuse to answer the question "Were there any other banks that you helped John Smith rob?"

In use immunity, the government merely promises to not use the witness' testimony against them. That is, nothing the witness says during their testimony can be used as evidence in proceedings against them.

For use immunity, since the immunity applies to all of the witness' testimony, the witness can't refuse to answer any questions, even questions unrelated to the matter at hand (although those questions could still be objected to on other grounds, such as relevance). This does raise the issue of what's called parallel construction, which is where the government, knowing something about the crime from an inadmissible source, uses that knowledge to find an admissible source of evidence. For instance, if the witness admits to robbing a bank other than First National Bank, the government can use that to see whether they can find surveillance footage of that robbery, and pursue prosecution based on any evidence other than the witness' testimony.

Also, if someone gives testimony under a good faith belief that the Fifth Amendment does not apply (that is, they believe that they can, and would, be prosecuted if they don't testify), then the exclusionary rule applies to their testimony. If a judge refuses to accept your assertion of the Fifth Amendment, and orders you to answer a question anyway under threat of contempt of court if you refuse, then any answer you give (assuming the Fifth Amendment did in fact apply), falls under the exclusionary rule. This essentially means that if you believe that you have use immunity (and can convince a court that you honestly did believe this), then you do.

There are further complications of a witness being given immunity from one sovereign, but not another. For instance, if a witness is given immunity from a state, but they could be prosecuted by the federal government, they could use that to argue that the Fifth Amendment still applies. Also, there are reasons other than the Fifth Amendment that a witness can/should refuse to answer a question, such as spousal or attorney privilege.

Answer 4

The fifth amendment doesn't mention the word "incriminate". If it did, you could argue that a person can incriminate himself/herself even if they have immunity, since "incriminate" means "make someone appear guilty of a crime or wrongdoing", even if you can't be charged for it.

Instead the fifth amendment says "shall [not] be compelled in any criminal case to be a witness against himself", which implies that there needs to be the possibility of a trial of the person.

So if a person with immunity tells under oath about the crimes he commited, he is incriminating himself (in the eyes of the public), but not witnessing against himself.