Witness Immunity & Compelled Testimony
A witness in a courtroom cannot be compelled to give testimony that would force her to admit that she had committed a crime. The familiar phrase "I take the Fifth" really means that the witness is admitting that were she to answer, she would be confessing that she herself had committed a crime.
The right not to be forced to give incriminating testimony against oneself comes from the Fifth Amendment to the United States Constitution. The applicable part reads: "No person . . . shall be compelled in any criminal case to be a witness against himself . . ."
Occasionally, a victim in a domestic violence case will invoke the Fifth Amendment and refuse to testify against her abuser. If the witness is not the spouse of the defendant, the prosecutor can take steps to force the witness to testify by granting her immunity from prosecution. The procedure involved is a fairly new one, created by statute in Missouri in 1997.
The statute reads as follows:
1. In the case of any individual who has been or may be called to testify or provide other information at any proceeding ancillary to or before a circuit or associate circuit court or grand jury of the state of Missouri, the judge of the circuit in which the proceeding is or may be held may issue, in accordance with subsection 2 of this section, upon the written request of the prosecuting attorney an order requiring such individual to give testimony or provide other information which the individual refuses to give or provide on the basis of the individual’s privilege against self-incrimination. When such order is issued, the witness may not refuse to comply with the order on the basis of the witness’s privilege against self-incrimination, but after complying with the order and giving the testimony or producing the evidence compelled by the order, no such person shall be criminally prosecuted or subjected to any criminal penalty for or on account of any act, transaction, matter or thing which the preson testifies or produces evidence, except a prosecution for perjury, giving a false or misleading statement or contempt committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order.
2. A prosecuting attorney may be granted an order compelling a witness to testify and produce evidence upon the approval of a verified application for witness immunity heard by a judge of the circuit court. The judge hearing the application for witness immunity may not preside over a grand jury proceeding where such testimony is given, and may not hear the subsequent criminal trial or any ancillary proceeding for which the immunity applies. Such application shall offer proof that:
(1) Such individual has refused or is likely to refuse to testify or provide other information on the basis of the individual’s privilege against self-incrimination; and either:
(2) The testimony or other information to be provided by such individual is necessary to the investigation or prosecution and is otherwise unobtainable; or
(3) The testimony or other information to be provided by such individual is necessary for the prosecutor to prove a defendant’s guilt beyond a reasonable doubt.
3. If a person refuses to testify on the basis of such person’s privilege against self-incrimination after being given an order to testify under this section or produce evidence or other information, such person shall be adjudged in contempt and committed to the county jail until such time as the person purges himself or herself of this contempt by testifying or producing evidence and information as ordered, or the trial for which the person’s testimony was required has concluded. In no event shall the length of confinement exceed twelve months.