A district attorney, attorney general, or special prosecutor of the state of Colorado may request an order as specified in subsection (2) of this section when in his or her judgment the testimony or other information from such individual may be necessary to the public interest and such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination.  CRS 13-90-118(3).

        Decision to grant immunity rests within discretion of prosecution.  People v. Macias, 44 Colo. App. 203, 616 P.2d 150 (1980); People v. Russom, 107 P.3d 986 (Colo.App. 2004).  This section vests the office of the prosecutor with sole discretionary authority to apply its provisions to any witness. People v. Harding, 671 P.2d 975 (Colo.App. 1983).  Courts possess no inherent power to grant immunity described in this section and may not grant it except upon request of prosecuting attorney. People v. Merrill, 816 P.2d 958 (Colo.App. 1991); People v. Raibon, 843 P.2d 46 (Colo.App. 1992); People v. Eggert, 923 P.2d 230 (Colo.App. 1995).

        Although CRS 13-90-118 authorizes a district attorney, attorney general, or special prosecutor to petition a district court for an order granting a person use immunity in exchange for the person's testimony in a judicial proceeding, this statute is not the only source for enforcing a governmental promise of immunity.  Our decisions expressly recognize that, even though the statutory immunity provisions of CRS 13-90-118 are not followed, a state may nonetheless be bound by a promise of immunity made to a defendant by a governmental agent possessing the apparent authority to bind the government.  e.g., People v. Manning, 672 P.2d 499 (Colo. 1983); People v. Fisher, 657 P.2d 922 (Colo. 1983).  People v. Romero, 745 P.2d 1003 (Colo. 1987)

        To assess whether a person accused of criminal conduct may enforce an offer of immunity by an official not listed in this section, three inquiries must be made: (1) Whether the defendant's privilege against self-incrimination is implicated; (2) whether the defendant reasonably and detrimentally relied upon the government official's promise by performing his or her side of the bargain; and (3) whether a remedy short of actual enforcement of the promise would approximate fundamental fairness.  Hopp & Flesch v. Backstreet, 123 P.3d 1176 (Colo. 2005).

        Police officer possesses the necessary apparent authority to make promises of immunity which bind his principal, the government.  People v. Manning, 672 P.2d 499 (Colo. 1983).

        A citizen may not grant another citizen transactional immunity from prosecution.  People v. Oram, 217 P.3d 883, 895 (Colo.App. 2009).

        The term "use immunity" refers to a witness's protection from the government's use of the witness's testimony, or any information derived from it, in any later criminal prosecution against the witness. 1 National Lawyers Guild, Representation of Witnesses Before Federal Grand Juries § 8.39, at 8-96 (4th ed. 1999).  Use immunity is different from transactional immunity, which is total immunity from prosecution for any transaction about which the witness testifies. Id. Hopp & Flesch, LLC v. Backstreet, 04SC697 (Colo. 11-21-2005)

Information or Services Limited to Terms of Agreement

        Information or CI services provided should be limited to those matters specifically covered in the immunity agreement.  Additional information or services outside the scope of the immunity agreement may be subject to prosecution, use as evidence at trial or other use.

        Where prosecutors were exposed to defendant's immunized testimony but defendant had previously made a detailed statement concerning her part in the crime and defendant's counsel provided additional information to the prosecutors that was not referred to in the detailed statement, possible prosecutorial use of information from the immunized testimony was not a structural defect in the trial and a harmless error analysis was appropriate.  In conducting such analysis court was entitled to consider the fact that defendant's participation in the crime was not seriously contested at trial.  People v. Reali, 895 P.2d 161 (Colo.App. 1994); People v. Reali, 950 P.2d 645 (Colo.App. 1997)

Ambiguity or Vagueness of Immunity Agreement

        A trial court judge must determine that which was agreed or promised.  If the immunity agreement is incomplete, ambiguous or vague, the trial court must wade through testimony or other evidence to determine if in fact there was an immunity agreement or benefit or inducement promised, and if so, the scope of immunity granted or benefit promised, whether there was detrimental reliance by defendant and the scope of action required of the defendant to be in compliance and gain the protection.  Written immunity agreement clarity, specificity and inclusiveness is definitely a plan.  Oral agreement or advisement is not.

Suspect or Defendant Failure to Comply with Immunity Agreement

        Defendant, who was granted immunity but still refused to testify, was not protected from prosecution under this section. People v. Castango, 674 P.2d 978 (Colo.App. 1983).  Prosecutors and law enforcement have heretofore threatened counsel's client with non-compliance - alleging client didn't do enough to constitute compliance.  When the immunity agreement has been properly drafted, that can be shut down - see below enforcement.

Enforcement of Immunity Agreement Against Prosecution

        When a defendant has acted with reasonable and detrimental reliance on a governmental promise involving a grant of immunity, the government must be stopped from going back on its promise.  People v. Romero, 712 P.2d 1081 (Colo.App. 1985), rev'd, 745 P.2d 1003 (Colo. 1987), cert. denied, 108 U.S. 1759, 108 S.Ct. 1296, 99 L.Ed.2d 506 (1988).

GUSTAFSON LAW OFFICE TOPICAL WEBSITES

 Serving Colorado Springs Area Zip Codes