In criminal cases, the prosecutors often bring charges where third party witnesses could give testimony that might be crucial to the prosecution or the defense. For example, the prosecutors' imagination for the ubiquitous conspiracy charge will often include unindicted co-conspirators, named in the indictment or not. It is not uncommon for those witnesses to be reluctant for a number of reasons, including fear of prosecution if they were to testify or fear of some other type of retribution if they testified. The former, of course, has constitutional dimensions.
At least in the example of unindicted co-conspirators, the prosecutors may be able to use and abuse hearsay statements under FRE 801(d)(2)(E). But, prosecutors may want actually live testimony of the unindicted co-conspirator(s). The prosecutors have a powerful tool to force such testimony by conferring statutory immunity. 18 USC Section 6003 (court "shall" issue the order of statutory immunity upon request of prosecutors). If the witness is important to the prosecutors' case against the named defendants, the prosecution will have the incentive to force the witness to testify upon penalty of contempt and incarceration if he or she does not testify. The prosecutors will often not want to confer immunity if the testimony is less important to the prosecution and the prosecutors want to hold open the possibility of prosecuting the witness in the future. (Technically, the grant of statutory immunity grants only derivative use immunity, but the difficulties of the Kastigar hearing may make prosecution unlikely after the witness testifies under compulsion of statutory immunity (use and derivative use immunity). )
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