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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

IMMUNITY (112)

Also see Fifth Amendment.

 

R.C. 2945.44 -- Immunity of witness turning state's evidence may be granted by Common Pleas Court judge.

R.C. 2939.17 -- Immunity for grand jury witness called by the Attorney General.

R.C. 2905.12(B) -- Offer of immunity not coercion.

R.C. 2923.23 -- Immunity from prosecution for weapons offenses if weapons are surrendered.

R.C. 2963.23 -- Accused (who has waived extradition to Ohio) immune from civil suits until conviction or return

home.

R.C. 101.44 -- Immunity of person who testifies before a legislative committee.

State v. Jackson, 125 Ohio St. 3d 218, 2010-Ohio-621 – Police officer on administrative leave had a gun when he was involved in a bar fight. He made a Garrity statement in the presence of another officer who later testified before the grand jury. Trial prosecutor also had access to the statement. Applying the test of Kastigar v. United States (1972), 406 U.S. 441, the prosecution neither denied any use of the defendant’s immunized testimony, nor affirmatively demonstrated all of the evidence to be used at trial was derived from wholly independent sources. Remedy is dismissal of the indictment.

State v. Reiner (2000), 89 Ohio St. 3d 342, 354- -- There is no need for a grant of immunity where a witness denies all culpability. A court may resort to R.C. 2945.44 only after reaching the conclusion that the witness's testimony would be self-incriminating. Grant of immunity to alternative suspect, who then denied culpability, was prejudicial to the defendant as it in effect told the jury she was not responsible. See dissent. Reversed insofar as the court held the witness did not have a valid Fifth Amendment claim. Ohio v. Reiner (2001), 532 U.S. 17. On remand the grant of immunity was again held improper. State v. Reiner (2001), 93 Ohio St. 3d 601. When it is an either/or situation as to whether the state's witness or the defendant is culpable, immunity is improper. The jury should hear the witness exercise his or her Fifth Amendment privilege and evaluate their testimony on that basis.

State v. Adams, 153 Ohio App. 3d 134, 2003-Ohio-3086 -- Wife balked at testifying at her husband's domestic violence trial, notwithstanding a grant of immunity, primarily because she feared prosecution for perjury based on inconsistencies between her trial testimony and her prior testimony before the grand jury. While a literal reading of Ohio's transactional immunity statute leaves open this possibility, the statute must be interpreted to provide protection coextensive with the Fifth Amendment. On this basis, the state may not use prior testimony to pursue the a claim the immunized testimony amounts to perjury. It can only use future testimony to that end.

State v. Neff (1999), 135 Ohio App. 3d 7 -- Ohio court granted state's witness immunity, but refused to compel her to testify when question of federal immunity arose. Applying Murphy v. Waterfront Commission, (1964), 378 U.S. 52, grant of state immunity bound the federal government, subject to an independent source exception.

State v. Brocious, Clark App. No. 2002 CA 89, 2003-Ohio-4708 -- Deputy was measuring skid marks. Fireman parked his truck over the marks. Fireman called deputy an asshole after being ordered to move the truck. Deputy drew his gun, cuffed the fireman, and placed him under arrest. Special prosecutor charged deputy with aggravated menacing and misconduct at the scene of an emergency. Since the prosecutor could not recall the extent to which she relied upon a compelled, and thus immunized, statement completed by the deputy, charges were properly dismissed. See Garrity v. State of New Jersey (1967), 385 U.S. 493. Dissenting judge believes suppression of statement was the appropriate remedy. Also see State v. Brocious, Clark App. No. 04CA0003 suggesting charges could be properly refiled by a new prosecutor not tainted by knowledge of the immunized statement.

State ex rel. Koren v. Grogan (1994), 68 Ohio St. 3d 590 -- (1) R.C. 2945.44 only provides transactional immunity. Transactional immunity is broad enough to subsume use immunity, which Ohio courts are not authorized to grant. Though the trial judge mistakenly included a use immunity instruction along with the required instruction on transactional immunity, this does not invalidate the grant of immunity. (2) Defendant and the driver of another car involved in an accident were both charged with aggravated vehicular homicide. The defendant was granted immunity to testify against the other driver. Writ of prohibition properly issued to bar prosecution for OMVI in another court.

Kastigar v. United States (1972), 406 U.S. 441 -- Use and derivative use immunity is coextensive with the protection of the Fifth Amendment. If a person who has been compelled to testify under a grant of immunity is later prosecuted, it is the burden of the government to prove incriminating evidence is derived from a wholly independent source.

State v. Prato (1965), 2 Ohio App. 2d 115 -- Headnote 2: "A witness, who, in answer to a subpoena of a grand jury, has been granted immunity under (former) sections 2945.44 and 2917.04 Revised Code, and who has properly invoked the constitutional guarantees against self-incrimination...cannot be compelled to answer questions which might be self-incriminating, where the grant of immunity is not coextensive with the scope of the privilege against self-incrimination."

In re Special Grand Jury Investigating Medicaid Fraud and Nursing Homes (1987), 38 Ohio App. 3d 161 -- R.C. 2939.17 grants use and derivative use immunity to persons called before a special grand jury by the Attorney General. There is no denial of equal protection insofar as the provision does not grant transactional immunity as does R.C. 2945.44. Also see State v. Sinito (1975), 43 Ohio St. 2d 98 construing language in former R.C. 2945.44, similar to present R.C. 2939.17 as conferring both use and derivative use immunity.

State v. Conrad (1990), 50 Ohio St. 3d 1 -- Syllabus: "Where, in obtaining an indictment from the grand jury, the prosecution uses compelled testimony of a witness immunized pursuant to R.C. 101.44 (immunity of person who testifies before a legislative committee), and where the right of immunity accorded such compelled testimony has not been waived by the witness under the guidelines set forth in R.C. 101.44, any indictment issued against the witness as a result of such grand jury proceedings must be dismissed. (Kastigar v. United States [1972], 406 U.S. 441, and New Jersey v. Portash [1979], 440 U.S. 450, followed.)

State v. Adamson (1998), 83 Ohio St. 3d 248 -- Immunity granted under R.C. 2945.44 continues even though the person granted immunity refuses to testify at a retrial. Statute requires compliance, but not the sort of full compliance the state claimed. Wife exercised her 5th Amendment privilege at husband's first trial, then was granted immunity and testified. Conviction was reversed because she was not competent to testify due to the marital relationship. After she refused to testify at the second trial she was indicted for her role in the homicide, in violation of the grant of immunity.

State v. Small (1987), 41 Ohio App. 3d 252 -- (1) A defendant's failure to meet the terms of an agreement not to prosecute nullifies the agreement. (2) The question whether the agreement has been breached should be determined at an evidentiary hearing. Also see State, ex rel. Gray, v. Leis (1980), 62 Ohio St. 2d 102.

New Jersey v. Portash (1979), 440 U.S. 450 -- Testimony compelled by a grant of immunity for those called before a state grand jury is coerced and involves the constitutional privilege against self-incrimination in its most pristine form. It may not be used for any purpose, including impeachment. Also see Rowe v. Griffin (11th Cir. 1982), 676 F. 2d 524, 527; Shotwell Manufacturing Co. v. United States (1963), 371 U.S. 341, 347.

State v. Tomlinson (1997), 125 Ohio App. 3d 13 -- Immunity was granted, then withdrawn when witness continued to assert his Fifth Amendment privilege. Court finds no abuse of discretion, minimizing the possibility the witness might have elected to testify if later called by the defense.

State v. Asher (1996), 112 Ohio App. 3d 646 -- Immunity may not be conferred by a prosecutor simply saying so when a witness is called before a grand jury. A written request must be made to the court of common pleas, which must then determine whether immunity would further the administration of justice, and inform the witness, on the record, that by answering questions, the witness will receive immunity. A municipal court judge may not presume a grant of immunity and must determine whether the proper statutory procedure was followed, based on competent evidence.

State ex rel. Ney v. Niehaus (1987), 33 Ohio St. 3d 118 -- Mandamus does not lie to compel a judge to grant immunity upon written request of the prosecutor. R.C. 2945.44(A) gives the judge discretion to determine that immunity would not further the administration of justice.

State ex rel. Leis v. Outcalt (1982), 1 Ohio St. 3d 147 -- Mandamus does lie to compel a judge to set aside an grant of immunity at the request of the defense and over the objection of the prosecutor. Syllabus: "Immunity is improperly granted to a witness when the witness has not refused to answer on the basis of his privilege against self-incrimination, and the prosecuting attorney has not requested the court to order the witness to answer."

State v. Thompson (1994), 97 Ohio App. 3d 629 -- R.C. 2151.421(G), conferring immunity from civil or criminal liability on any person reporting in good faith known or suspected child abuse, applies to the consequences of reporting the abuse to the authorities and does not protect defendant accused of harboring child without parent's permission.

State v. Wolery (1976), 46 Ohio St. 2d 316 -- Paragraph one of the syllabus: "When fully disclosed to the jury, a promise of immunity offered by the prosecuting attorney to a witness in exchange for his testimony affects the weight to be given that testimony, not its admissibility."

State ex rel. Celebrezze v. Howard (1991), 77 Ohio App. 3d 387, 391 -- "Ohio courts have held that Evid. R. 410 applies only to plea negotiations and where no plea is entered, as in the case of a grant of immunity, then the exclusionary provisions of Evid. R. 410 do not apply."

In re Poth (1981), 2 Ohio App. 3d 361 -- Headnote: A juvenile court has authority to grant immunity under R.C. 2945.44, even though there was not any criminal proceeding pending against the 'grantee' of the immunity, and even though the grantee was not a witness at the time of the grant." (Case may be wrongly decided or reach the proper conclusion without stating the right reasons.)

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