Answer to Weekly Bar Question 03/31/08

(B) is the best response, because it correctly identifies the reason why Simmons' testimony will not be admissible against Taylor: It was derived from Taylor's immunized testimony.  Taylor was granted immunity for his grand jury testimony.  This means that he was immunized from the use of his testimony, or evidence derived from his testimony.  (The other type of immunity is transactional immunity, under which, in general, the witness is immunized from prosecution for any crime related to the transaction to which the witness testifies).  Here, Taylor's testimony was the only clue the prosecutor had to Simmons' involvement in the robbery.  Thus, Simmons' testimony was derived from Taylor's immunized testimony.  As a result, it cannot be used against Taylor.  Since B identifies this, it's the best response. 

(A)   is not the best response, because it misstates the law:  The prosecutor can bargain away the rights of one co-defendant in a deal with another.  In a way, every time a prosecutor makes a deal with one defendant, he's impacting the rights of the other, since a defendant's testimony against his co-defendant will hurt the co-defendant.  Furthermore, A ignores the real reason the objection to Simmons' testimony will be sustained: because it was derived from Taylor's immunized testimony, since Taylor's testimony is the only way the prosecutor discovered Simmons.  Thus, Simmons testimony against Taylor derived from Taylor's own immunized testimony, so it cannot be used against Taylor.  Since A doesn't recognize this, it's not the best response. 

(C) is not the best response, because it arrives at the wrong result, and does not focus on relevant issues.  The fact that the police suspected Taylor before he testified is not relevant; his immunized testimony, in which he identified Simmons, is the focal point here.  Taylor's immunized testimony is the only source of evidence as to Simmons' identity.  Since Simmons was discovered through Taylor's testimony, Simmons' testimony would be considered derived from the immunized testimony, and thus could not be used against Taylor.  Thus, the police's notion that Taylor was involved before he testified won't be relevant.  If you chose this response, it could be because you were thinking of the other kind of immunity - transactional immunity - under which the witness is immunized from prosecution for any crime related to the transaction to which the witness testifies.  However, the witness may nonetheless be prosecuted if the prosecution can show an independent source for the evidence - i.e., any source other than the immunized testimony.  Under these facts, however, it's use immunity, not transactional immunity, that's involved - so the "independent source" concept isn't relevant.  Since C states otherwise, it's not the best response. 

(D) is not the best response, because it misstates the law, and arrives at the wrong result.  There are many reasons why a witness who is willing to testify may not be able to:  If his testimony is cumulative evidence, if he's incompetent to testify, and many others.  Thus, as a blanket statement, D is incorrect.  Under these facts specifically, D ignores the fact that Simmons' testimony was derived from Taylor's immunized testimony, and thus cannot be used against Taylor.  Since D fails to recognize this, it's not the best response.