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Witness immunity plays a big role in Manafort case

| Aug 7, 2018 | Criminal Defense |

The trial of former Trump campaign chairman Paul Manafort is finally underway, and it provides a fascinating window into how prosecutors approach high-stakes cases.

In the first of two federal trials (with the second slated for September in D.C.), Manafort faces multiple counts of tax evasion and bank fraud. Prosecutors allege that he covered up millions of dollars of income and falsified documents to obtain millions in bank loans.

Much of their case hinges on witness testimony – much of which, in turn, hinges on immunity. Shortly before trial, five witnesses were granted immunity in exchange for their testimony against Manafort. All worked for financial institutions with various links to Manafort. And the star witness – Manafort’s former “second-hand man,” Rick Gates – secured immunity last winter as part of a plea deal.

The complexities of immunity

The case illustrates the important role that witness immunity often plays in complex prosecutions. Witnesses can’t be compelled to make incriminating statements on the stand. Immunity allows them to speak without jeopardizing their rights.

Many star witnesses – such as Rick Gates in the Manafort case – start out facing serious criminal charges themselves. As a result, they have a strong incentive to cooperate. But it’s important to tread with care.

Not all immunity arrangements are equal. Broadly speaking, there are two types:

  • Transactional immunity: Also called “blanket” or “total” immunity, this type shields witnesses from prosecution for any criminal activities they testify about. It’s the strongest type of immunity, but it’s not available in the federal system.
  • Use and derivative use: Under this type of immunity, prosecutors can’t use witnesses’ incriminating statements to support criminal charges against them. Nor can prosecutors use any evidence derived from the immunized testimony. However, they’re free to use independent evidence to prosecute the witness. This type of immunity isn’t as strong as transactional, but it’s more common.

Short-term immunity arrangements, typically outlined in “proffer letters,” serve as preludes to formal grants of immunity. They allow witnesses to discuss (or “proffer”) in broad strokes the information they possess, giving prosecutors a better sense of its value.

All types of immunity, however, have limits. Witnesses can still face perjury or obstruction charges for lying, and their statements can be used to undermine their credibility if they start backpedaling later.

Maximizing your leverage

Given the complexities of immunity – and the strategic considerations involved – it’s not something to take lightly. Whether you’re facing criminal charges, a formal investigation or a request for a sit-down with law enforcement, always consult with a defense attorney first. You may have valuable information that could be used as leverage – or used against you, if you’re not careful. It takes an experienced legal mind to navigate these murky waters.

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