government presented evidence in a separate and distinct manner so that the "jurors were able to keep separate ... the evidence as to each offense”
How later courts described this case
- government presented evidence in a separate and distinct manner so that the "jurors were able to keep separate ... the evidence as to each offense”
- where a witness invokes the' Fifth Amendment privilege, the trial court must determine whether there is a "substantial and real" risk of prosecution
- “While the Office of the Corporation Counsel does not have statutory authority to grant immunity, its agreement not to prosecute is a fundamental equivalent thereof’
- "privilege [does not] exist where the statute of limitation has run"
Written by the judges who cited it.
Later courts went against this
Overruled in part by Carter v. United States, 1996 D.C. App. LEXIS 225 (1996)
We granted the government’s petition for rehearing en banc and after en banc consideration, we now overrule our prior decision in Jaggers, supra, and its progeny, insofar as these cases require the trial judge, in evaluating a defense witness’ invocation of the privilege against self-incrimination, to predict or assess the practical likelihood that the witness will be prosecuted.
The opinion
NEWMAN, Chief Judge,
concurring:
I join fully the Per Curiam opinion and write briefly to add the following which the trial court may find helpful in its analysis on remand.
Although the record shows that no drug or drug paraphernalia were seized at the time of the arrest, this record does not present a case of an absolute bar to prosecution based on the corroboration requirement. The record discloses that Jaggers testified as follows at the hearing on the motion to suppress his confession:
Q. Now, at the time that you were down at the police station that morning, were you under the influence of any drugs or alcohol?
A. Yes, I was.
Q. And could you tell the Court what drugs, if any, you had taken?
A. I took a gram of cocaine that night.
Q. What time that night?
A. Approximately 1:00 a.m.
Q. And how did that make you feel, say about 5:30 or 6:00 a.m. in the morning?
*797 A. Unstable person can’t think very clearly, makes you hallucinate sometimes, depends on how much you take.
Further, the record indicates a proffer by Jaggers that the records of the Pre-trial Services Agency reflect that Jaggers told an interviewer for that agency that he had used cocaine on the day of his arrest.
In any prosecution of Stoddard, these statements would be inadmissible hearsay; Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). To provide the corroboration required by our decisions, the prosecution would have to attempt to call Jaggers as a witness at the trial of Stoddard. In such event, Jaggers could seek to invoke his Fifth Amendment privilege. Since his prior trial testimony and statement to the Pre-trial Service examiner were in a different proceeding, he has not waived his privilege. Salim v. United States, supra, at 714, 715; Ellis v. United States, 135 U.S.App.D.C. 35 , 416 F.2d 791 (1969). Thus Jaggers would meet the first prong of the test for invoking the privilege. The court would then be required to address the second prong. If it determines against Jaggers on this point, he could be ordered to testify. If the court sustained the privilege, the Corporation Counsel could seek an immunity grant by the United States.
No reason appears of record for the court declining to request the Corporation Counsel not to prosecute in the case presently before us, and none has been suggested to us. While the Office of the Corporation Counsel does not have statutory authority to grant immunity, its agreement not to prosecute is a fundamental equivalent thereof. Of course, a witness who has received a grant of immunity does not have the right to refuse to testify. United States v. Mandujano, 425 U.S. 564, 575 , 96 S.Ct. 1768, 1776 , 48 L.Ed.2d 212 (1976).
Since the government has the burden of proof on this issue on remand, Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), mandates that it must bear the burden of witness unavailability, failed memory since the time of trial, or other impediment to the taking of Stod-dard’s testimony.