reasoning that where a defendant had fully confessed his criminal activity to the state grand jury, it was reasonable to assume that the testimony might have been “used” indirectly in focusing the state’s investigation, deciding to prosecute, or in planning trial strategy, such as cross-examination, but that “[n]o such assumption is possible in this case because appellee’s testimony is devoid of any helpful or incriminating evidence”
How later courts described this case
- reasoning that where a defendant had fully confessed his criminal activity to the state grand jury, it was reasonable to assume that the testimony might have been “used” indirectly in focusing the state’s investigation, deciding to prosecute, or in planning trial strategy, such as cross-examination, but that “[n]o such assumption is possible in this case because appellee’s testimony is devoid of any helpful or incriminating evidence”
- stating that "an inquiry into the subjective thinking of the prosecuting authorities would be especially meaningless,” and observing that "prosecuto-rial motives are not probative of whether the evidence sought to be introduced was obtained from a legitimate independent source or whether the compelled testimony was used as an investigative lead or that it focused the investigation” on the defendant
- reasoning that it was clear that “the com pelled testimony did not cause the investigation to focus on appellee because appel-lee had always been the subject and focus of the investigation”
- finding that prosecutors did not use the defendant’s exculpatory account to obtain investigatory leads or to focus the investigation
Written by the judges who cited it.
The opinion
NEWMAN, Chief Judge,
concurring:
I join in Judge Kelly’s opinion for the court. I write separately only to make one additional point. It is that immunized statements would be admissible in a prosecution for obstruction of justice alleging that those statements contained willful “misrepresentation” undertaken “to obstruct, delay, or prevent the communication to an investigator of the District of Columbia government by any person of information relating to a violation of any criminal statute.” 1 D.C.Code 1981, § 22-703.
In United States v. Apfelbaum, 445 U.S. 115 , 100 S.Ct. 948 , 63 L.Ed.2d 250 (1980), the Supreme Court held that one may be prosecuted for perjury or false swearing committed in an immunized statement. A principal underlying rationale is that the privilege against self-incrimination is meant to protect one from adverse consequences of testimony as to prior crimes, and not to facilitate false testimony prospectively. The use immunity is coextensive with the constitutional privilege. Therefore, immunity does not prevent the use of those statements in a prosecution for a crime committed by virtue of the statements themselves, as opposed to prior crimes to which they may refer. While Apfelbaum involved a prosecution for perjury, there is no plausible basis for treating any differently obstruction of justice committed in the course of an immunized statement. Although three Justices found it necessary to disassociate themselves from some possible implications of the majority opinion, 2 the entire *454 Court appears to accept both the premise that use immunity does not confer a de facto privilege to lie, and the conclusion that, if the lie constitutes a crime, the statement can be used to show its commission.
[Njeither the immunity statute nor the Fifth Amendment preclude [sic] the use of respondent’s immunized testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise applicable rules of evidence. [United States v. Apfelbaum, supra at 131, 100 S.Ct. at 957 .]
[The Fifth Amendment] permits an individual to refuse to answer questions; but it does not give him the right to answer falsely. [Id. at 132, 100 S.Ct. at 957 (Brennan, J., concurring in the judgment) (citations omitted).]
The privilege operates only to protect the witness from compulsion of truthful testimony of an incriminating nature. Perjury or the making of false statements under a grant of immunity thus violates a basic assumption upon which the privilege and hence the immunity depend. [Id. at 135, 100 S.Ct. at 959 (Blackmun, J., concurring in the judgment).]
As there is no apparent ground relevant to admissibility for distinguishing an immunized false statement constituting the crime of perjury from one constituting the crime of perjury from one constituting criminal obstruction of justice pursuant to § 22-703, the statements here in issue would be admissible in a prosecution for the latter crime.
. The opinion of the court notes that the statements would be admissible in a prosecution for perjury or false swearing, but does not address the subject of this concurrence. See supra p. 450 note 5.
. In particular some Justices disapproved the possibility of using statements to establish perjury committed at some point other than during the immunized statement itself. United States v. Apfelbaum, supra at 132-33, 100 S.Ct. at 957-58 (Brennan, J., concurring in the judgment), 133, 100 S.Ct. at 958 (Blackmun, J., concurring in the judgment).