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Can someone who is testifying as a witness in a U.S. civil (small claims) case receive immunity from criminal acts?

Consider this hypothetical:

The defendant is accused of stealing something from the plaintiff. However, the stolen item was a bottle of alcohol and the witness who wants immunity is under the legal drinking age.

The witness wants immunity from any claims that he illegally obtained or consumed alcohol.


Is there any precedent saying that a witness is immune to any crime he admits to while being a witness?

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    In what state? Rules can differ state-to-state. – cpast Aug 11 '16 at 15:34
  • I'm editing the question so it doesn't ask for legal advice on a specific matter. See: law.stackexchange.com/help/on-topic – Mr_V Aug 11 '16 at 15:37
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Is there any precedent saying that a witness is immune to any crime he admits to while being a witness?

Yes, there is precedent, but it unlikely to apply to your situation.

The applicable type of immunity is called witness immunity. There are two types of witness immunity, transaction (aka blanket immunity) and use immunity. Both must be granted by the prosecution.

Check out this article on Nolo-Legal for a description of the two: http://www.nolo.com/legal-encyclopedia/immunity-exchange-testimony.html

Immunity can apply to a civil case, but the prosecution's grant of immunity must specifically say so. See Pillsbury Co. v. Conboy, 459 U.S. 248, 263–64 (1983).

While there is authority for witness immunity in civil cases, the witness would be unlikely to get it. Generally, the prosecution provides immunity when they need testimony from a witness and that witness asserts their 5th amendment right against self incrimination. By providing immunity, the prosecution removes the 5th amendment concerns and the witness can then be compelled to answer the prosecution's question. This process is explained in more detail in this article. http://www.nolo.com/legal-encyclopedia/when-prosecutors-grant-immunity-what-does-immunity-grant-mean-the-witness.html

Given the way in which immunity is granted to witness, it is most likely to happen in civil cases where the government—not a private party—needs a witness's testimony. For example, a civil case brought by the government for a consumer protection, anti-trust, or securities law violations against a company.

Also, the witness might want to know the statute of limitations for under-aged possession of alcohol. If it lapsed there would be no need for immunity.

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    It's not necessarily limited to a prosecutor granting it; other government entities (like a legislature) may be able to grant witness immunity as well, so that they can do their job even if the part of the government responsible for prosecuting people doesn't cooperate. – cpast Aug 11 '16 at 16:38
  • @cpast - Interesting! I always thought witness immunity from criminal prosecution could only come from the prosecution. How does the legislature granting immunity differ from the legislature just passing a new law or the concept of congressional immunity? – Mr_V Aug 11 '16 at 16:45
  • It's not congressional immunity because the people getting it aren't in Congress, and it's not like passing a private law because it doesn't require the same long process. At the federal level, immunity is granted by one house of Congress or by 2/3 of a single committee; once they decide to grant immunity, they go to a federal court and get an order compelling testimony with use-and-derivative-use immunity. The AG can get the court to delay for up to 20 days, but neither the AG nor the court can deny the order and immunity. – cpast Aug 11 '16 at 18:13
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    @cpast, I think we are talking about the same thing.The congressional immunity statute, 18 U.S.C. § 6005, which allows a single house or committee of Congress to grant immunity to a witness at a congressional hearing. However, congressional immunity this only applies to witnesses who testifies at a congressional hearing—not a witness who is testifying in a trial or other court hearing, which is known as "witness immunity." This law review article explains it as well: georgetownlawjournal.org/files/pdf/95-6/Volokh.PDF – Mr_V Aug 11 '16 at 18:56
  • Ah. Yeah, we are. – cpast Aug 11 '16 at 19:21
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In general, you cannot safely admit to crimes as a witness. In extreme cases, you might be given immunity if the police is really more interested in the other guy: If you witnessed a murder while stealing a car, it's likely that the police and prosecutor don't mind if you get away with stealing a car as long as a murderer is convicted. In your case, that wouldn't be the case.

On the other hand, you need to check your state laws; things will be different from state to state. And it may make a difference whether you were under 18 or 21. In many states "possession of alcohol with the intent to drink" will only get you a small fine. And check what your state law says about pure possession. There may be a difference between possession, possession with intent to consume, and drinking alcohol.

And then there is the matter of evidence. If the guy stole a bottle of alcohol from you, you might tell the court and therefore admit that you were in the possession of alcohol. But if someone should ask anything else about it, you have the right not to answer, so it would be extremely hard to prove that you had the intent to drink this alcohol.

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If you are worried about getting busted in court for a minor possession charge, don't (unless there's more here that you haven't told us about).

First off, courts are not the police. They are two different branches of the government. It seems paradoxical to think this way, but if you confessed to a crime in a court of law, the judge would have to call the cops on you. Note, however, that if you were to be charged later on, the statements you made in court can be used against you. There is no immunity there just because you were a witness in an unrelated case.

Secondly, this is small claims court we're talking about. It's very informal and is by nature a civil court, not a criminal one. Your admission of underage possession on the witness stand might get you a raised eyebrow from the judge, but your criminal activity wouldn't be relevant to the case. He could legally detain you after court and turn you over to the police to be charged, but that would be a serious jerk move on his part. Remember, hearing people's petty squabbles day after day is his job. He's probably seen it all and likely won't care. Just be respectful and dress nicely -- don't give him a reason to care.

Lastly, Minor In Possession (MIP) is a misdemeanor in every state. You cannot go to jail for it (assuming this is your first offense and your record is otherwise clean). Realistically, that's a $100-200 fine at worst depending on where you live. In many cases it'd just be probation depending on the circumstances. And again, that's IF the judge even cares enough to make some example out of you.

Bottom line is, you just have to decide whether your loyalty to your friend and whatever was stolen the is worth the risk. If you're a good person and your nose is (mostly) clean, the risk is pretty low. If there's more to it than what you're saying here, then you'll just have to weigh it out. Or ask more specific questions.

  • As to your next-to-last paragraph, in general, it is possible to go to jail for a misdemeanor. And taking Washington State as an example, Minor In Possession is a "gross misdemeanor" punishable by up to a year in jail or a fine of up to $5000. I agree that this seems unlikely in reality but it is on the books. – Nate Eldredge Aug 11 '16 at 20:18
  • @NateEldredge: Are their any qualifications to the "up to"? I suppose there is a difference between being in possession of a bottle of beer, and running your own distillery in your parent's basement. – gnasher729 Aug 11 '16 at 23:15
  • @gnasher729: No qualifications that I can see. RCW 9A.20.021 (2): "Every person convicted of a gross misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of up to three hundred sixty-four days, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine." Of course, prosecutors may have other guidelines as to what sort of punishment they would normally seek. – Nate Eldredge Aug 11 '16 at 23:19
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The expression "taking the Fifth", i.e. refusing to testify, refers to one of two main legal protections against self-incrimination. Under the 5th Amendment you cannot be compelled to incriminate yourself. The other way is to be granted immunity from prosecution, in which case you can be compelled to testify no matter what. In small claims court there is no prosecutor who might grant you immunity. There are in many states a few additional provisions such as Washington RCW 69.50.315, where a person seeks medical aid for someone who has overdosed on illegal drugs and this yields evidence that the person was in possession of illegal substances. There is no such exception for under-age possession.

  • "Pleading the 5th" is only applicable if you're being compelled to testify, or if you're the person being charged. If your entire testimony is voluntary, the 5th Amendment doesn't protect you. – Wes Sayeed Aug 11 '16 at 18:48
  • Actually, it is established in the case law that one must anticipatorily plead the fifth when the police ask you a potentially incriminating question that sounds like an accusation. If you remain silent when not in custody, silence becomes an "adoptive admission". – user6726 Aug 11 '16 at 20:39
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Putting aside the question of your immunity, the confession of a defendant to an unrelated theft is irrelevant to this case and is not admissible evidence. The judge should tell you this if you bring it up.

The fact that someone may (or may not) have stolen before is not evidence that they have stolen now. The theft your friend is perusing needs to be proved on its own merits.

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