Immunity from Prosecution and the Fifth Amendment: An Analysis of Constitutional Standards

Transactional immunity, on one hand, affords a witness absolute immunity from prosecution for the offense to which the testimony relates, but testimonial immunity, on the other hand, provides protection only from the use of the testimony itself or any evidence derived\u27 directly or indirectly from it--use and fruits immunity. Until the Supreme Court\u27s recent decision in United States v. Kastigar, conflict over the immunity concept was best manifested by the attempts to formulate an appropriate characterization of the relationship between Counselman v. Hitchcock, which represents the transactional immunity approach, and Murphy v. Waterfront Commissioner of New York Harbor, representing a departure from the transactional immunity standard toward a testimonial immunity approach. The Supreme Court in Kastigar attempted to reconcile the apparent disparity between Counselman and Murphy by restricting the more expansive Counselman standard. This Note will explore initially the scope and purpose of the privilege against self-incrimination, attempt to define the concept of immunity in order to discuss the manifold problems surrounding its operation in relation to the fifth amendment, and analyze the interrelationship of the Counselman and Murphy decisions as well as the Supreme Court\u27s recent decision in United States v. Kastigar

Index of mentions of St. Augustin\u27s Church and School in Newport Daily News, 1970-1999

List of mentions of the St. Augustin\u27s Church and St. Augustin\u27s School in the Newport Daily News, listed alphabetically by subject with date.https://digitalcommons.salve.edu/st-augustin/1003/thumbnail.jp

Criminal Procedure Within the Firm

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition—which has been underexplored in spite of heated public debate about the state’s practices in this area—proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual cases within firms (as opposed to firm cases against firms) is distinctive for at least three reasons: in terms of causation and incentives, the presence of an organization materially alters the incidence of individual misconduct ex ante and the efficiency and efficacy of investigating and prosecuting that conduct ex post; the nature of the applicable substantive criminal violations (white collar crimes) causes such cases to ripen into criminal cases more slowly than those outside business firms; and lawyers have multiple roles in such cases not only ex post but also ex ante. I evaluate two current practices in light of these structural differences: state use of the fruits of employer coercion of employees’ waivers of the right to silence; and state negotiation with firms over the scope of firms’ indemnification of their agents for litigation costs. I conclude that some reforms of current practices in these areas would be beneficial but that calls for abolition of those practices are misguided