Question: Will You Be Forced To Testify Against Yourself With The Granting Of Immunity?
Answer: Not When a prosecutor has neither filed a charge, nor initiated a grand jury proceeding!
In 2010, S.C. gave birth to an infant alone in an apartment she shared with her boyfriend, S.H. Shortly thereafter, S.H. returned to the apartment, found S.C. and the infant, and took them to a nearby hospital. Medical staff noticed seven puncture wounds on the infant’s back and notified authorities. During its investigation, police heard conflicting accounts of the circumstances of the infant’s birth and the cause of the injuries. Child Services initiated an investigation, and the infant was ultimately removed from her parents’ care. In 2011, the prosecutor petitioned the trial court for subpoenas to compel S.H. and S.C. to appear and give testimony relating to an incident involving the home birth of the infant. The court granted the petition and issued both subpoenas that same day. The day before the parents were set to testify, their attorney moved to quash the subpoenas pursuant to their state and federal constitutional rights against self-incrimination. In a hearing held that day, the court granted the motion to quash. Immediately thereafter, the prosecutor petitioned the court for a grant of use immunity. After hearing argument from counsel, the trial court granted the petition for use immunity. Thereafter, parents appealed and their case went to the Indiana Supreme Court.
On appeal, the State of Indiana argued that the prosecutor’s authority to request use immunity in this case stems the following statute which states:
When a prosecuting attorney receives information of the commission of a felony or misdemeanor, the prosecuting attorney shall cause process to issue from a court (except the circuit court) having jurisdiction to issue the process to the proper officer, directing the officer to subpoena the persons named in the process who are likely to have information concerning the commission of the felony or misdemeanor. The prosecuting attorney shall examine a person subpoenaed before the court that issued the process concerning the offense.
On its face, this statute empowers prosecutors to subpoena witnesses. It does not empower them to provide use immunity to those witnesses; indeed, it says nothing at all about use immunity. Therefore, it does not authorize the petitions for use immunity in this case. The Indiana Supreme Court went on to hold that in a situation where, as here, no charges have been filed and no grand jury has been convened, a prosecutor may subpoena witnesses pursuant to Indiana Code § 33–39–1–4; if those witnesses invoke their constitutional right against self-incrimination, however, the prosecutor cannot petition the court to grant them use immunity and compel them to testify without first filing charges or convening a grand jury. As a result, the Court reversed the trial court’s ruling and remanded this case for further proceedings consistent with our opinion. 984 N.E.2d 630