NCJ Number
121354
Journal
St. John's Law Review Volume: 63 Issue: 3 Dated: (Spring 1989) Pages: 585-613
Date Published
1989
Length
30 pages
Annotation
In United States v. Gallo, a Federal district court refused to dismiss an indictment even though the government had made inadvertent and unauthorized use of the defendant's prior immunized testimony and held that the Federal statutory grant of immunity under 18 U.S.C. 6002 did not apply to crimes committed after the immunized testimony and no violations of the defendant's fifth amendment rights had occurred.
Abstract
On appeal an improper reading of Supreme Court precedent caused two appellate court judges to find that a fifth amendment violation had occurred, even though the court upheld the district court holding. A grant of immunity cannot protect testimony from derivative use because the fifth amendment protections cannot extend to future criminal acts. Because the appeals court failed to limit the scope of the use immunity statute to situations where a proper fifth amendment claim was advanced, it created a situation threatening the evidence-gathering purpose of 18 U.S.C. 6002. In ruling that a fifth amendment violation had occurred, and then subjecting it to a harmless error analysis, the appeals court failed to define the proper scope of the fifth amendment and the protections available under the use immunity statute. The harmless error constitutional analysis should never be applied to violations of constitutional guarantees affecting fundamental rights because it derogates the integrity of the judicial system. 81 footnotes.