How Prosecutors Leverage Immunity to Get What They Need During an Investigation

Immunity is a powerful tool in criminal investigations. Both federal and state prosecutors use immunity agreements as tools to build cases. These agreements compel cooperation from witnesses and potential defendants while preserving the government’s ability to prosecute where necessary.

Anyone facing an investigation must understand the implications of immunity agreements before making any statements, as misunderstandings about the scope of immunity is a common way people find themselves in more trouble than they assume. Failing to properly educate yourself prior to entering into any agreement or providing information can lead to serious consequences, including the loss of Fifth Amendment protections or self-incrimination through derivative investigations.

Types of Immunity

Immunity agreements vary in scope, each offering different levels of protection. The three primary types are transactional immunity, use immunity, and limited use immunity, each serving a different purpose for investigators and extending varying levels of protection for those granted immunity.

• Transactional Immunity – The broadest form of immunity, protecting a witness from prosecution for crimes related to their testimony. Once granted, prosecutors cannot charge the individual for offenses connected to the immunized statements.
• Use Immunity – Prevents the government from using a witness’s statements against them in criminal proceedings. However, this does not stop prosecution if independent evidence supports the charges.
• Limited Use Immunity – Prohibits direct use of statements but allows exceptions. If a witness commits perjury or contradicts prior testimony, prosecutors can introduce their immunized statements to challenge credibility.

Many immunity agreements include derivative use provisions or agreements, which allow investigators to use immunized testimony to develop independent evidence. Even though the original statements cannot be introduced at trial, they can serve as leads for further investigation. If authorities gather enough separate evidence “derivatively”, that evidence may be used against the individual despite the fact that the immunized statements which led to the separate evidence was originally provided via immunity.

For example, if a witness testifies under an immunity agreement that a specific individual was present at a meeting where illegal activities were discussed, prosecutors cannot use that testimony directly. However, investigators can follow up on the lead by obtaining security footage or interviewing other witnesses, which may provide independent evidence to prosecute the individual who provided the immunized information.

Florida State Law Pertaining to Immunity in Criminal Cases

Florida law grants transactional immunity under specific circumstances. If a prosecutor compels testimony through a subpoena, the witness automatically receives transactional immunity. This means they cannot be charged with offenses related to their testimony. Unlike federal immunity agreements, Florida’s statutory framework does not allow for limited use immunity or derivative use clauses.

This distinction creates strategic opportunities and challenges. For instance, a prosecutor may subpoena a witness rather than negotiate a federal-style limited immunity agreement, knowing that Florida law mandates full protection. However, this can backfire if the wrong individual is granted immunity through a subpoena, effectively barring prosecution against a guilty party.

A well-documented example occurred in Miami-Dade County, where the prosecution mistakenly subpoenaed the wrong participant in a crime. Because Florida law conveyed transactional immunity upon them, the individual avoided charges entirely. Such scenarios highlight the importance of careful prosecutorial discretion when leveraging immunity in state investigations.

When Testimony and Defense Runs Contrary to Statements Made Under Immunity

Immunity agreements do not protect against contradictions. If a defendant (or their criminal defense attorney) later advances a defense strategy at trial that contradicts immunized statements, prosecutors can introduce those earlier statements as evidence to defeat the defenses being offered or to question the validity of statements being made. This is particularly relevant in federal criminal cases involving limited use immunity.

For example, a target of an investigation may provide statements under a limited use immunity agreement, believing they are safe from prosecution. If their defense at trial presents a conflicting version of events, the prosecution can use their prior immunized statements to challenge their credibility. This exception serves as a safeguard against false testimony while preserving the integrity of the investigative process.

Defendants must be cautious when discussing immunity agreements with prosecutors. These conversations should only take place with legal representation, ensuring that any statements made align with a long-term defense strategy. Prosecutors may frame immunity as a way to resolve an investigation favorably, but conflicting statements can ultimately weaken a defense and increase exposure to criminal liability.

Forming a Proper Defense Strategy When Immunity is on the Table

Properly leveraging immunity agreements requires strategic planning. Prosecutors offer immunity to gather evidence, but these agreements carry significant risks. A defense strategy must account for potential contradictions and the possibility of derivative investigations. Even when an agreement appears to provide protection, prosecutors can still use immunized statements to develop other charges.

Because courts do not have the authority to grant immunity—only prosecutors do—defense counsel must assess whether an agreement serves the client’s best interests. In Florida, understanding how automatic transactional immunity applies can mean the difference between securing protection and making an irreversible misstep.

Anyone facing an investigation involving immunity should seek immediate legal representation if they haven’t already. Attorney Barry M. Wax provides clear and effective legal strategies to protect clients from unintended consequences—even when the cards are stacked against them. Whether in state or federal court, careful planning ensures that an immunity agreement works as intended and does not become a tool for prosecution. Contact our firm today and establish a serious defense when facing serious charges.