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scales of justiceWe have all seen the picture of Lady Justice: the blind woman holding the sword and the perfectly balanced scales. This image purports to represent the level playing field that is the criminal justice system. However, criminal practitioners know that these scales tip somewhere between slightly and significantly in favor of the government because prosecutors have far more weapons at their disposal to pursue cases than do defendants to oppose them. One of the most powerful weapons in a prosecutor’s arsenal is its ability to grant a witness immunity.

As anyone who practices criminal law knows, sometimes citizens with relevant information prefer not to become witnesses in criminal matters. Some live by a personal code that condemns those who testify on the governments’ behalf, some fear retaliation by defendants or others, some seek to avoid prosecution for their own crimes, and more. Where witnesses to a crime are reluctant to become involved in a criminal proceeding, prosecutors can compel testimony with a simple grant of immunity. When that happens—problem solved—the government gets its witness.

With the power to immunize witnesses also comes the power not to immunize witnesses. By not immunizing specific witnesses, prosecutors can virtually assure that certain people never testify. This Hamlet-esque question, to immunize or not to immunize, means the government can use immunity as both sword and shield.

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