N.M. R. Crim. P. Dist. Ct. 5-116
N.M. R. Crim. P. Dist. Ct. 5-116
Committee commentary. - This rule, together with Rule 11-412 NMRA, creates a procedure for supplanting the privilege against self-incrimination by a grant of use immunity from the court.
There are two types of witness immunity, the so-called "use and derivative use" immunity rule and the so-called "transactional immunity" rule. Use and derivative use immunity was held to be co-extensive with the scope of the Fifth Amendment privilege against self-incrimination in Kastigar v. United States, 406 U.S. 441 (1972). See also Zicarelli v. New Jersey State Comm'n, 406 U.S. 472 (1972). The so-called "transactional immunity" rule affords the witness considerably broader protection than does the Fifth Amendment privilege. Kastigar, 406 U.S. at 453; see also Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); see generally, Note, 82 Yale L.J. 171(1972); Note, 58 Va. L. Rev. 1099 (1972); Note, 32 Md. L. Rev. 289 (1972).
Although prior to the 1980 amendments, this rule did not specifically require a party to make a written application for the court to issue a written order granting immunity, the New Mexico Supreme Court held that the application and order must be written. See Campos v. State, 91 N.M. 745, 580 P.2d 966 (1978). This rule was amended in 1979 to require a written application in accordance with the Campos decision. Prior to the New Mexico Supreme Court's decision in State v. Belanger, 2009-NMSC-025, the court could only issue an order granting use immunity upon application of the prosecuting attorney. However, Belanger removed that restriction, and this rule has been revised to allow the court to issue an order granting use immunity upon application of the prosecuting attorney, the accused, or upon the court's own motion.
If the court is considering whether to grant a defense witness use immunity over the opposition of the prosecution, Belanger provides the following guidance to district courts:
district courts should perform a balancing test which places the initial burden on the accused. The defendant must show that the proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree. If the defendant meets this initial burden, the district court must then balance the defendant's need for the testimony against the government's interest in opposing immunity. A court cannot determine whether a judicial grant of use immunity is necessary "without assessing the implications upon the Executive Branch." Turkish, 623 F.2d at 776. In opposing immunity, the State must demonstrate a persuasive reason that immunity would harm a significant governmental interest. If the State fails to meet this burden, and the defendant has already met his burden, the court may then exercise its informed discretion to grant use immunity which our appellate courts would review for abuse of discretion.
Belanger, 2009-NMSC-025, ¶ 38.
[As amended by Supreme Court Order No. 10-8300-028, effective December 3, 2010.]
ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-017, effective December 31, 2014, changed the reference in Paragraph C from "11-412" to "11-413". The 2010 amendment, approved by Supreme Court Order No. 10-8300-028, effective December 3, 2010, in the title of the rule, added "use"; in Paragraph A, in the first sentence, after "official proceeding is or may be held may", deleted "upon the written application of the prosecuting attorney", and added the last sentence; in Paragraph B, in the introductory sentence, after "if it finds", added "the following"; and added Paragraph C.
For statute on witness immunity, see Section 31-6-15 NMSA 1978. For rule on use of evidence obtained under immunity order, see Rule 11-412 NMRA. Witness use immunity and transactional immunity distinguished. - Transactional immunity involves a promise by prosecutors that a witness will not be prosecuted for crimes related to the events about which the witness testifies. Transaction immunity affords the witness immunity related to the entire transaction, not just the witness's testimony. Transactional immunity is a legislative prerogative defined by statute. Under a grant of use immunity, the prosecution promises only to refrain from using the testimony in any future prosecution, as well as any evidence derived from the protected testimony. Under use immunity, the prosecution may proceed with charges against the witness so long as it does not use or rely on the witness's testimony or its fruits. The grant of use immunity is a power that the Supreme Court defines in the exercise of its inherent judicial authority. State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, rev'g 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530 and overruling State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708; State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066; and State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496. Authority to grant witness use immunity. - New Mexico courts have the authority to grant a witness use immunity under certain limited circumstances. State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, rev'g 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530 and overruling State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708; State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066; State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496. Rule modified by the Supreme Court. - Paragraph A of Rule 5-116 NMRA is amended to delete the words "upon the written application of the prosecuting attorney". The amendment applies prospectively and to all pending cases that have not yet gone to trial as of May 12, 2009. State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, rev'g 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530 and overruling State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708; State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066; State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496. Guidelines for granting witness use immunity. - Before granting use immunity to a defense witness over the opposition of the prosecution, the district court should perform a balancing test which places the initial burden on the defendant. The defendant must show that the proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree. If the defendant meets this initial burden, the district court must then balance the defendant's need for the testimony against the government's interest in opposing immunity. In opposing immunity, the state must demonstrate a persuasive reason that immunity would harm a significant government interest. If the state fails to meet this burden, and the defendant has already met his or her burden, the court may then exercise its informed discretion to grant use immunity which appellate courts would review for abuse of discretion. State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, rev'g 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530 and overruling State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708; State v. Baca, 1997-NMSC- 045, 124 N.M. 55, 946 P.2d 1066; State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496. Failure to meet defendant's burden of proof. - Where defendant and defendant's co-defendant shot and killed the victim; defendant called the co-defendant as a witness; the co-defendant told the district court that the co-defendant would assert the right against self-incrimination, but that the co-defendant would testify if the co-defendant was granted use immunity; defendant argued that because the co-defendant was an eyewitness, the co-defendant was important to defendant's defense; and defendant never made a proffer of the testimony the co-defendant would give or addressed how defendant's defense would be prejudiced without the co-defendant's testimony, the district court did not abuse its discretion in denying the co-defendant use immunity. State v. Ortega, 2014-NMSC-017. Prosecution's grounds for refusing witness use immunity not valid. - Where the defendant was charged with criminal sexual penetration of a minor; there were no witnesses to the alleged incident and no physical evidence implicating the defendant; the defendant wanted to call a witness against whom the victim had leveled similar sexually related charges just weeks before the incident involving the defendant; the state dismissed the charges against the witness and had no intention of bringing new charges against the witness; the state refused to request use immunity for the witness on the grounds that the witness had no valid Fifth Amendment right because the case against the witness had been dismissed and that the grant of use immunity would encourage others to seek immunity, the state's explanation for refusing to grant use immunity was not justified and the witness's testimony might have been material to the defendant's theory of the case. State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, rev'g 2007-NMCA-143, 142 N.M. 751, 170 P.3d 530 and overruling State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708; State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066; State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496. Compliance with the procedural requirements of this rule is mandatory. State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496. A defendant has no sixth amendment right to demand that any witness he chooses be immunized, and the prosecution's refusal to grant immunity to a defense witness who would allegedly offer exculpatory testimony to a defendant did not amount to a denial of due process or a violation of sixth amendment rights. State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496; State v. Baca, 1997-NMSC-045, 124 N.M. 55, 946 P.2d 1066. Generally as to privilege against self-incrimination. - Unless protected by an authorized immunity order, no witness can be required to give testimony which either directly or indirectly tends to incriminate him or to form a link in a chain of circumstances that might result in punishment for crime. Campos v. State, 1978-NMSC-050, 91 N.M. 745, 580 P.2d 966. Self-incriminating testimony from defendant compelled to testify cannot be admitted in later proceedings. - A defendant who is compelled to testify about criminal activities or prior convictions that might otherwise be self-incriminating in a later proceeding may not have such evidence admitted against him in those later proceedings. The protection of the defendant's fifth amendment rights in this manner fully compensates for any failure by the state or the trial court to comply with this rule. State v. Urioste, 1980-NMCA-104, 95 N.M. 712, 625 P.2d 1229. Absent constitutional or statutory enablement, neither district attorney nor district court may grant immunity from a prosecution to which incriminating answers might expose a witness. Campos v. State, 1978-NMSC-050, 91 N.M. 745, 580 P.2d 966. Purpose of rule. - This rule was promulgated and approved by the supreme court to provide a method by which a grant of immunity could be secured and the constitutional prescription against self-incrimination protected. Campos v. State, 1978-NMSC-050, 91 N.M. 745, 580 P.2d 966 (decided prior to 1980 amendment). This rule and Rule 11-412, which grant the judicial branch the authority to immunize a witness, strike a permissible balance between the state's interest in prosecuting crime and private rights under the Fifth Amendment. State v. Brown, 1998-NMSC-037, 126 N.M. 338, 969 P.2d 313. Validity of rule. - This rule is valid. State v. Gabaldon, 1978-NMCA-101, 92 N.M. 230, 585 P.2d 1352, cert. denied, 92 N.M. 260, 586 P.2d 1089. Although the validity of Subdivision (a) (see now Paragraph A) is questionable because immunity from prosecution is qualitatively different from the privilege not to testify and the granting of immunity is a legislative function, nevertheless the court of appeals has no authority to set aside a rule adopted by the New Mexico Supreme Court. State v. Thoreen, 1978-NMCA-024, 91 N.M. 624, 578 P.2d 325, cert. denied, 91 N.M. 610, 577 P.2d 1256 (decided prior to 1980 amendment). Requisites of application and order. - This rule requires an application (held to mean "written application") by the district attorney and an order (held to mean "written order") by the trial court ordering the person to testify; the order must also contain the specific condition that the state shall forego the prosecution of the person for criminal conduct about which he is questioned and testifies. Campos v. State, 1978-NMSC-050, 91 N.M. 745, 580 P.2d 966 (decided prior to 1980 amendment). No authority to demand immunity for witness by the defense in New Mexico. State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708, cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984). Use immunity under New Mexico law is available only at request of the state and there is no statutory or judicial provision for a defendant's invocation of use immunity for a witness; defendant suffered no prejudice necessary to find ineffective assistance of counsel as result of failure of his attorney to find use immunity statute where defendant did not demonstrate that prosecution would have granted witness immunity, thereby permitting witness to testify even if defense attorney had discovered the statute. McGee v. Crist, 739 F.2d 505 (10th Cir. 1984). Limitations to derivative use immunity. - Section 31-6-15 NMSA 1978, and its implementing rules, Rule 11-412 NMRA and this rule, allow the government to compel a witness to testify and then prosecute the witness for the crimes mentioned in the compelled testimony, as long as neither the testimony itself nor any information directly or indirectly derived from the testimony is used in the prosecution. However, it is not enough for the prosecutor to simply assert that all evidence to be used at trial was obtained prior to the defendant's immunized testimony; instead the state should have included testimony from key witnesses, along with testimony from the prosecutor and the investigators, that the witnesses had not had access or otherwise been exposed to the defendant's immunized testimony. State v. Vallejos, 1994-NMSC-107, 118 N.M. 572, 883 P.2d 1269. No due process violation where defendant ignored opportunity to explain request. - Where the trial court suggested an in camera hearing and the prosecutor suggested an in camera hearing with the prosecutor excluded, but the defendant did not respond to these suggestions and did not take advantage of the opportunity to explain to the court how a potential witness' testimony might be exculpatory and grant of immunity thus might be in the public interest, the defendant was in no position to complain that due process was violated. State v. Thoreen, 1978-NMCA-024, 91 N.M. 624, 578 P.2d 325, cert. denied, 91 N.M. 610, 577 P.2d 1256 (decided prior to 1980 amendment). Defective grant of immunity. - Defendant failed to show any prejudice resulting from witness's exculpatory testimony given under a defective grant of immunity. State v. Summerall, 1986-NMSC-080, 105 N.M. 82, 728 P.2d 833. Rule does not preclude enforcement of other agreements. - Although this rule applies only to immunity from prosecution, this does not mean that other agreements are not to be enforced. Agreements for reduced charges have been enforced within the dictates of due process; that is, on constitutional grounds. State v. Gabaldon, 1978-NMCA-101, 92 N.M. 230, 585 P.2d 1352, cert. denied, 92 N.M. 260, 586 P.2d 1089. Agreement for reduced sentence if conviction occurs is enforceable agreement on due process grounds and is a type of agreement not covered and not prohibited by this rule. State v. Gabaldon, 1978-NMCA-101, 92 N.M. 230, 585 P.2d 1352, cert. denied, 92 N.M. 260, 586 P.2d 1089. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 157 to 167. Right of immune jury witness to obtain access to government affidavits and other supporting materials in order to challenge legality of court-ordered wiretap or electronic surveillance which provided basis for questions asked in grand jury proceedings, 60 A.L.R. Fed. 706. 22 C.J.S. Criminal Law § 78 et seq.