What Does It Mean When the Prosecution Gives an Accuser Immunity in a Domestic Violence Case?

November 14th, 2021 by Tad Nelson in Domestic Violence

Domestic violence cases often come down to the word of the accuser against that of the defendant. This means that it is crucial that the defense have an opportunity to fully cross-examine the accuser. Indeed, the right of “confrontation” is one of the basic constitutional requirements of any criminal trial.

So what happens when an accuser is reluctant to testify because they fear their own statements might actually turn around and incriminate them? Just as the Constitution guarantees the right of confrontation, it also protects the right against self-incrimination. In other words, a witness normally cannot be forced to testify in open court if doing so might incriminate them.

We say “normally” because there is, in fact, a critical exception to this rule. The prosecution and the judge may grant a reluctant witness “use and derivative use” immunity. In plain terms, a witness who testifies under immunity cannot be prosecuted for any incriminating statements they make on the stand. Since this removes any possible legal jeopardy, the witness then cannot “plead the Fifth” or refuse to answer questions.

Appeals Court: Immunity Did Not Violate Defendant’s Rights

A recent Houston appeals court decision, Costilla v. State, addressed the impact of use and derivative use immunity in domestic violence prosecutions. Specifically, a defendant argued that granting such immunity to his accuser, it effectively deprived him of his right to properly cross-examine her. The Texas First District Court of Appeals disagreed and pointed out the defendant misunderstood the scope of such immunity.

This case began when the defendant contacted the police. He told the police that his live-in girlfriend “had repeatedly struck” him during an argument. The officers at the scene did not believe the defendant’s account of events and instead arrested him on suspicion of domestic violence. Prosecutors later formally charged the defendant with felony continuous violence against a family member.

At trial, the girlfriend proved reluctant to testify, invoking her Fifth Amendment right against self-incrimination. The prosecution then asked the court to force the accuser’s testimony under a promise of use and derivative use immunity. The judge granted the motion and the accuser testified.

Although the jury ultimately acquitted the defendant of the felony domestic violence charge, it did convict him of a lesser-included misdemeanor. This prompted the defendant’s appeal.

With respect to the use of immunity, the First District rejected the defendant’s position that the prosecution and the judge had effectively granted the accuser a license to lie, as she could not be prosecuted for anything she said on the stand. That was not actually true, the appellate court explained. Any grant of use or derivative use immunity excludes perjury. In other words, the accuser could not be prosecuted for any crimes she might admit to in her testimony–but she could still be charged with perjury if she lied on the stand. As such, the decision to grant immunity did not prejudice the defendant’s own constitutional right to confront his accuser.

Contact League City Domestic Violence Lawyer Tad Nelson Today

Given the crucial importance of witness credibility in these types of cases, it is imperative you work with an experienced Galveston domestic violence attorney who will zealously represent your interests in court. Contact the Law Offices of Tad Nelson & Associates today to speak with a lawyer right away.

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