Immunity is Catching

Q: I saw a judge on Law & Order threaten to through out an immunity agreement. Can judges really do that?

A: My colleagues are going to poke fun of me, but I really do enjoy a good episode of Law & Order. I wish real court life was that succinct. They go from crime, to investigation, to indictment, to trial and conviction in one, neat hour. And, for the most part, the legal wrangling is pretty spot on, though not entirely complete.

To answer this question fully, you need to understand the idea of immunity. Of course, most of us know about the idea of being “immune” from a disease, meaning the disease has no affect on the person with immunity. Well, it is not unlike that in the law.

There is the classic, “sovereign immunity.” Quite simply, to say that the “sovereign” is “immune” is to say that the state is not liable for certain aspects of their governance. The term “sovereign” is derived from the English common law and was a reference to the King who was absolute in his power, beneficently ruling with the authority of a little god in his country. Thus, since he was instilled in the monarchy by the authority of God himself, the king could do no wrong. Hence, he could not be liable in court either. Patriots put that notion down; but the idea that the government – made of, by, and for the people – was limited in its liability remained. Today, the government is immune from most legal actions alleged against it, though exceptions do, indeed, exist to provide adequate redress for wrong action.

Judicial or civil immunity attaches to judges and civil servants acting in their official capacity. Thus, a judge cannot be sued for a certain ruling from the bench and a police officer cannot be prosecuted for arresting you. However, even that has a down side: if either wield their judicial or civil power to intentionally harm someone, thus taking them outside of their proscribed role, they could face legal action.

Spouses also carry immunity, as do clergy, lawyers, and doctors. This type of immunity is called “testimonial” immunity and serves as a tool to promote confidentiality. Thus, a wife may refuse to provide testimony against her husband, a priest need not tattle on his parishioner, a lawyer cannot reveal the confidences of his client, and the doctor retains a privilege over his patient’s revelations. Yet even those testimonial privileges can be pierced in rare circumstances and the testimony that was once immune can be compelled.

Then there is the type of immunity that prompts this question: immunity agreements. We are all aware of the perp that agrees to “turn state’s evidence” in exchange for not being prosecuted for a crime, or receiving a lesser punishment. That is an immunity agreement. Essentially, it is a contract. The lawbreaker agrees to rat on his pal and, in return, the prosecutor he is helping agrees not to nail him on the crime that his testimony naturally implicates him.

Can such an agreement be overturned by a judge? Let me give you the classic law school professor answer: it depends. On the one hand, no it is a contract and, under the law of contract, once the rat sings, the state has to stand silent. But, on the other hand, if the scofflaw welshes on the deal, the state is not obligated to honor its end of the bargain and the judge can overturn the immunity agreement.

The easy answer? Yes. (But aren’t you glad you read this whole article to get that?!)

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.