VOLUME 93

Colin Miller

A defendant is charged with using extortionate means to collect a loan. Two brothers give statements to the FBI. One brother’s statement tends to incriminate the defendant. The other brother’s statement tends to exonerate the defendant. Both brothers indicate that they will invoke the privilege against self-incrimination if called to testify at trial. The prosecutor gives immunity to the brother whose statement incriminates but doesn’t give immunity to the brother whose statement exonerates. The jury only hears from the first brother and returns a guilty verdict.

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Full article available here.