Moreland Report Revives Debate Over N.Y. Grand Jury Immunity

, New York Law Journal

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A preliminary report of Governor Andrew Cuomo's anti-corruption panel has reignited an old debate over whether New York State should join the federal government and the vast majority of states and scrap its controversial "transactional immunity" rule that cloaks grand jury witnesses with an extraordinary shield against prosecution.

Under New York's rule, codified under Criminal Procedure Law §50.20 and §190.40, a witness compelled to testify before a grand jury is automatically immune from prosecution on any matter on which she or he testifies, even if independent evidence is developed. The federal government and 33 states provide witnesses with "use immunity," which bars the prosecution from using the witness' own testimony, or evidence derived from that testimony, against the witness.

Prosecutors have for decades urged the state to drop transactional immunity and adopt a use immunity standard. Earlier this month, the Commission to Investigate Public Corruption, or "Moreland Commission," joined the chorus. The 25-member commission, which includes 17 current or former prosecutors, said that transactional immunity impedes the ability of authorities to prosecute crooked officials.

A majority said that with the transactional rule, the fear that a prosecutor will unwittingly immunize a witness merely by mentioning an incident has a "chilling effect" and the district attorney may be reluctant to summon a wrongdoer before a grand jury, lest the witness say something that will trigger immunity and render a crooked politician untouchable.

"Public corruption cases are often multifaceted criminal enterprises, where witnesses play a key role in untangling the complexities of a given scheme," the commission said. "The chilling effect of 'unknowing immunization' places prosecutors at a significant disadvantage in pursuing public sector corruption cases."

The commission said prosecutors "must not be chilled from zealously prosecuting those who have betrayed the public trust," and should have "access to the same full complement of resources as their federal counterparts, who have proven so adept at prosecuting these crimes."

Since the commission's mandate under an executive order signed by Cuomo is limited to identifying weaknesses in existing laws related to "public corruption, conflicts of interest and ethics" in state government, the panel did not recommend eliminating transactional immunity in all criminal cases.

"The commission confines itself to the subject matter of the Executive Order and recommends that at a minimum, the rule be altered for public corruption matters," the commission said in the 367th footnote to a 98-page report.

Similarly, the majority said New York should, in public corruption cases only, do away with the state's rule requiring corroboration of accomplice testimony. New York is one of 18 states to require independent corroboration of accomplice testimony by someone who is not an accomplice.

"Public corruption cases often hinge on the testimony of accomplices," the commission said. "The close circle of insiders in a corruption scheme may be the only ones privy to vital facts needed to effectively prosecute wrongdoing. Without this tool, New York prosecutors are frequently left powerless to effectively prosecute complex public corruption cases."

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