Immunity: Meaning, Types, Special Considerations

What Is Immunity?

Immunity is an exemption from a legal requirement, prosecution, or penalty granted by statute or government authorities.

Understanding Immunity

There are four principal types of immunity:

1. Witness immunity from prosecution is granted to someone in exchange for information or testimony in a criminal trial.
2. Public officials’ protection from liability protects officials like city managers and police chiefs from liability for their decisions. It also protects state and federal lawmakers and executives in connection with their conduct of official duties.
3. Sovereign or governmental immunity protects a sovereign state or agency from lawsuits without their consent.
4. Diplomatic immunity is granted to diplomatic personnel exempting them from the laws of a foreign jurisdiction.

In the case of witness immunity, certain crimes—such as organized crime and racketeering—can only be proved through the testimony of someone who is a “partner in crime” and involved in the same criminal activity. In exchange for their testimony and cooperation, prosecutors in the U.S. may offer such reluctant witnesses immunity from prosecution. There are two types of immunity in such cases:

1. Transactional immunity provides blanket protection from prosecution for crimes that a witness is required to testify about.
2. Derivative use immunity prohibits information provided by someone from being used against them.

Immunity Risks for Witnesses

There are a number of risks that arise from granting such immunity. One risk is that an individual may falsely accuse others and minimize personal culpability. On the other hand, transactional immunity generates the risk of an “immunity bath,” in which a witness mentions a wide range of crimes they committed, secure in the knowledge that they have immunity from prosecution. Another risk is that immunized testimony may be perceived as being unreliable, since it has been “bought,” in a manner of speaking.

In deciding whether to grant immunity to a witness, the following factors are taken into consideration:

• The seriousness of the offense. An immunity agreement is typically only considered when testimony is required for a serious offense; immunity may not be considered for minor cases.
• The reliability of the witness. The prosecution must determine the extent to which the witness’s testimony or information can be corroborated, and also gauge their reliability.
• Involvement in the criminal activity. It would not be in the public interest to rely on the testimony of someone who is deeply enmeshed in criminal activity to convict another individual who is only a minor participant in the same criminal activity, or by providing immunity against prosecution to a person who has committed a serious offense.

Special Considerations

Diplomatic immunity, another well-known form of immunity, is governed by rules set forth in the 1961 Vienna Convention on Diplomatic Relations and has been agreed upon by 192 countries. The treaty states that diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving state, and also enjoy immunity from civil proceedings unless the case involves property or business interests unrelated to their diplomatic duties.

However, immunity does not grant a free-for-all. Moreover, governments do not always invoke diplomatic immunity with respect to non-official acts by their representatives. For example, in 1997, the Republic of Georgia waived the immunity of its second-highest ranking diplomat after he killed a 16-year old girl while driving under the influence. He was prosecuted and convicted of manslaughter, for which he was incarcerated for three years in North Carolina before returning to Georgia, where he served two more years in prison.