The Constitutional Basis For Requiring Continuing Immunity For Witnesses Immunized Before The Grand Jury

By Reetu Sinha*

Volume 46.2

*J.D. Candidate 2020, The University of Texas School of Law. The author is currently Managing Editor of the American Journal of Criminal Law; she played no part in the consideration of this article for publication.


In United States v. Salerno, seven defendants were indicted on various RICO charges.[1]  One of the central issues in the case was interference with unions at a particular construction firm. In the course of the grand jury investigation to obtain these indictments, AUSAs from the Southern District of New York called two owners of the firm to talk with them about the defendants’ involvement and any illegal activity they or their firm might have been involved with. Both owners testified before the grand jury under a grant of immunity. However, the testimony, despite being elicited by the prosecution, was exculpatory in nature for the defendants. When it came time for trial, the defendants attempted to call the two owners to give the exculpatory evidence on their behalf. However, the prosecution did not extend the owners’ immunity to trial. And so, when called, both witnesses invoked their Fifth Amendment right against self-incrimination and refused to testify. Defendants attempted to introduce the grand jury testimony, but the Supreme Court ultimately held that the testimony did not meet a hearsay exception to render it admissible.

However, the issue that was not raised and therefore not addressed by the Supreme Court was the constitutionality of the prosecution’s decision not to extend the witnesses‘ immunity through trial or otherwise allow the defendants to introduce testimony the witnesses gave before the grand jury.[2] The Second Circuit itself, before the case went up to the Supreme Court on certiorari, considered the Brady implications of Salerno, noting that the practice of withholding exculpatory evidence from the defendant “was not true to the letter or spirit of Brady.”[3] The court did not give a thorough analysis of the Fifth Amendment issues at play because of the doctrine of constitutional avoidance.[4] But it did conclude that denying the defendants access to exculpatory power that was within the government’s possession would be “nothing more than a semantic somersault.”[5] Before being reversed by the Supreme Court, the Second Circuit utilized a hearsay analysis to avoid reaching the constitutional claims.[6] The case was remanded to the Second Circuit to comply with the Supreme Court’s opinion, and went through a series of opinions, but the Constitutional questions were not revisited.[7]

When the Supreme Court struck down the Second Circuit’s alternate basis for allowing the defendant to utilize grand jury testimony, all that was left were the constitutional arguments. [8]The doctrine of constitutional avoidance was embraced partly as a method to avoid broad judicial overreach into areas that are better addressed through democratic processes and public discussion.[9] The most influential articulation of the doctrine is in Justice Brandeis’s concurrence in Ashwinder v. Tennessee Valley Authority, where he lays out seven rules the Court has used to avoid answering constitutional questions.[10] The most applicable of the seven rules to this case is the Last Resort Rule, or the rule that “[t]he Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”[11] When there is an alternative basis for the Court to grant relief, then it should rely on that ground.[12] However, when that ground has been removed as a basis for the Court to grant relief, then it has no alternative to rely on to avoid the constitutional issues.[13] Therefore, the defendants were entitled to have their constitutional claims addressed. So, the question must be answered: do defendants’ constitutional rights to compulsory process, confrontation, and due process entitle them to either continued immunity for witnesses already immunized by the police or access to grand jury testimony? Yes, they do.

     [1]   United States v. Salerno, 505 U.S. 317, 317–20 (1992).

     [2]   See Salerno, 505 U.S. at 317–20; see also United States v. Salerno, 937 F.2d 797, 807–08 (2nd Cir. 1991) rev’d, 505 U.S. 317 (1992).

     [3]   Salerno, 937 F.2d at 807 (2nd Cir. before Supreme Court). 

     [4]   Id. (“However, we rest our decision on our interpretation and application of Fed. R. Evid. 804(b)(1), and not Brady v. Maryland, keeping in mind the time-honored rule that we should not reach constitutional issues unless absolutely necessary.”).

     [5]   Id.

     [6]   Id.

     [7]   See United States v. DiNapoli, 8 F.3d 909 (2nd Cir. 1993).

     [8]   See Salerno, 937 F.2d at 808 (2nc Cir. before Supreme Court). 

     [9]   See Andrew Nolan, The Doctrine of Constitutional Avoidance: A Legal Overview, Congressional Research Service, 8 (2014).

     [10]  Id. at 8–10.

     [11]  Id. at 10 (citing Ashwander v. TVA, 297 U.S. 288, 345–48 (1936) (Brandeis, J., concurring)).

     [12]  Id. at 16 (citing Bond v. United States 572 U.S. 844 (2014)).

     [13]  See id.

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