Commonwealth v. Johnson

NIX, Chief Justice,

concurring.

Although I agree that under the facts of the instant case the majority correctly concluded it was proper to deny use immunity for the defense witness, I cannot agree with the majority’s conclusion that under no circumstances does a court have the power to grant such immunity. Certainly courts, as the very arbiters of justice, have the power to effectuate due process when faced with blatant prosecutorial misconduct or the possibility that an innocent defendant will be convicted. When faced with such situations courts must be able to fashion a remedy to accord a fair trial.

I.

As recognized by the Third Circuit in United States v. Morrison, 535 F.2d 223 (3d Cir.1976), “[tjhere are circumstances under which it appears due process may demand that the government request use immunity for a defendant’s witness.” Id. at 229 (citations omitted). So, too, there *39 are circumstances under which it appears due process mandates that the court, absent prosecutorial demand, grant use immunity for a defendant’s witness. This concept was firmly set out in Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980), where it was stated:

But while we think that the court has no power to order a remedial grant of statutory immunity to a defense witness absent a showing of unconstitutional abuse, a case might be made that the court has inherent authority to effectuate the defendant’s compulsory process right by conferring a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense.

Id. at 969 (emphasis added), citing United States v. Herman, 589 F.2d 1191, 1204 (3d Cir.1978), cert. denied 441 U.S. 913 , 99 S.Ct. 2014 , 60 L.Ed.2d 386 (1979). *

The Virgin Islands court, citing United States v. Herman, supra at 1204, thus set out two remedies available to courts when the due process clause might compel the granting of immunity to defense witnesses:

First, ... where government actions denying use immunity to defense witnesses were undertaken with the “deliberate intention of distorting the judicial fact finding process,” the court has the remedial power to order acquittal unless on retrial the government grants statutory immunity. ... Second ... in certain cases a court may have “inherent authority to effectuate the defendant’s compulsory process right by conferring a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense.”

615 F.2d at 966 .

*40 I believe the Virgin Islands standard allows courts to promote due process without unduly intruding into the realm of the executive.

II.

In the instant case, however, there was no evidence of distortion of the trial process nor any showing that the defense witness would offer testimony which would clearly exculpate appellant. Furthermore, here the government had a strong interest in withholding use immunity. The defense witness was a co-defendant in the case who had successfully severed his trial from that of appellant. If immunized the witness might have given false testimony, leading to appellant’s acquittal. To grant use immunity in such a situation would be a disservice to the public interest.

I agree, therefore, with the Superior Court that we should adopt the standard set out in Virgin Islands v. Smith, supra, and that, in the instant case, the defense did not demonstrate that its witness was entitled to use immunity.

The Supreme Court of the United States has never addressed the issue of a court’s inherent authority to grant use immunity under the due process rationale. Pillsbury Co. v. Conboy, 459 U.S. 248 , 103 S.Ct. 608 , 74 L.Ed.2d 430 (1983), which is cited by majority in note 12, merely holds that the court under the statutory language in 18 U.S.C. §§ 6001-6005 has no authority to immunize a witness.