CO Code § 13-90-118 (2021)
2021 Colorado Code|Title 13 - Courts and Court Procedure|Article 90 - Witnesses|Part 1 - General Provisions|§ 13-90-118. Witness Immunity

  Whenever a witness refuses, on the basis of the privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to a court or grand jury of the state of Colorado involving any laws of the state and the person presiding over the proceeding communicates to the witness an order as specified in subsection (2) of this section, the witness may not refuse to comply with the order on the basis of the privilege against self-incrimination; except that no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury or false statement or otherwise failing to comply with the order.    In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court or grand jury of the state of Colorado, the district court for the judicial district in which the proceeding is or may be held, or the county court in which a misdemeanor proceeding is or may be held, may issue, upon request of any district attorney, attorney general, or special prosecutor of the state of Colorado, an order requiring such individual to give testimony or provide other information which he or she refuses to give or provide on the basis of the privilege against self-incrimination, such order to become effective as provided in subsection (1) of this section.    A district attorney, attorney general, or special prosecutor of the state of Colorado may request an order as specified in subsection (2) of this section when in his or her judgment the testimony or other information from such individual may be necessary to the public interest and such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination.     History. Source: L. 69: P. 1245, § 1. C.R.S. 1963: § 154-1-18. L. 72: P. 574, § 68. L. 83: Entire section R&RE, p. 638, § 1, effective July 1. L. 2004: Entire section amended, p. 1378, § 4, effective July 1. History. Source: L. 69: P. 1245, § 1. C.R.S. 1963: § 154-1-18. L. 72: P. 574, § 68. L. 83: Entire section R&RE, p. 638, § 1, effective July 1. L. 2004: Entire section amended, p. 1378, § 4, effective July 1.    ANNOTATION   Law reviews. For article “Witness Immunity Under Colorado Law”, see 27 Colo. Law. 37 (Dec. 1998).   Supreme court may review immunity proceedings. Where the Colorado supreme court retained jurisdiction to review the rulings of the trial court in “immunity proceedings”, it was not intended that the court grant carte blanche interlocutory review of every procedural ruling of the trial court in the conduct of those proceedings, but review is properly limited to matters bearing upon the substantive determination of the grant of immunity relied upon by petitioner in avoidance of prosecution. Wheeler v. District Court, 180 Colo. 275 , 504 P.2d 1094 (1973).   Immunity granted under this section is necessarily transactional. Wheeler v. District Court, 184 Colo. 193 , 519 P.2d 327 (1974); People v. Lucero, 196 Colo. 276 , 584 P.2d 1208 (1978); Steinberger v. District Court, 198 Colo. 59 , 596 P.2d 755 (1979).   “Transaction immunity” defined. Transaction immunity may be simply described as that which precludes prosecution for any transaction or affair about which a witness testifies. Use immunity, by contrast, is a grant with limitations. Rather than barring a subsequent related prosecution, it acts only to suppress, in any such prosecution, the witness's testimony and evidence derived directly or indirectly from that testimony. Steinberger v. District Court, 198 Colo. 59 , 596 P.2d 755 (1979).   Immunity granted by this statute is no longer transactional. Since the statute protects the witness from use of the compelled testimony in subsequent criminal proceedings, a defendant who, subsequent to conviction but prior to sentencing, was granted immunity and compelled to testify against his codefendant was not deprived of his privilege against self-incrimination. People v. Lederer, 717 P.2d 1017 (Colo. App. 1986).   In order to constitute proper request for witness immunity, defense counsel must explicitly request that the court grant a witness “immunity” at the time the witness is being questioned, and after the witness has claimed his fifth amendment privilege. People v. Macias, 44 Colo. App. 203, 616 P.2d 150 (1980).   Decision to grant immunity rests within discretion of prosecution. People v. Macias, 44 Colo. App. 203, 616 P.2d 150 (1980); People v. Russom, 107 P.3d 986 (Colo. App. 2004).   This section vests the office of the prosecutor with sole discretionary authority to apply its provisions to any witness. People v. Harding, 671 P.2d 975 (Colo. App. 1983).   Courts possess no inherent power to grant immunity described in this section and may not grant it except upon request of prosecuting attorney. People v. Merrill, 816 P.2d 958 (Colo. App. 1991); People v. Raibon, 843 P.2d 46 (Colo. App. 1992); People v. Eggert, 923 P.2d 230 (Colo. App. 1995).   No error in grant of immunity when the prosecution believed that witness's testimony was necessary in the interest of justice and the record clearly showed that the testimony is essential to the prosecution's case. People v. Russom, 107 P.3d 986 (Colo. App. 2004).   Police officer possesses the necessary apparent authority to make promises of immunity which bind his principal, the government. People v. Manning, 672 P.2d 499 (Colo. 1983).   To assess whether a person accused of criminal conduct may enforce an offer of immunity by an official not listed in this section, three inquiries must be made: (1) Whether the defendant's privilege against self-incrimination is implicated; (2) whether the defendant reasonably and detrimentally relied upon the government official's promise by performing his or her side of the bargain; and (3) whether a remedy short of actual enforcement of the promise would approximate fundamental fairness. Hopp & Flesch v. Backstreet, 123 P.3d 1176 (Colo. 2005).   Defendant who was compelled by court order to provide incriminating testimony in a civil case after having been convicted and sentenced was not entitled to postconviction relief of his criminal sentence based on transactional immunity but was only entitled to use immunity, and since the testimony had not affected the judge's sentencing decision, trial court was correct in denying motion for postconviction relief. People v. Singer, 688 P.2d 248 (Colo. App. 1984).   Witness compelled to testify after conviction but before sentencing gains immunity. Since a recital of the sentence is an essential part of a judgment of conviction, a court which compels a witness to testify after her own conviction but before sentencing, by operation of this immunity statute, has aborted the prosecution and precluded itself from imposing a sentence or entering a final judgment of conviction. Steinberger v. District Court, 198 Colo. 59 , 596 P.2d 755 (1979).   Defendant, who was granted immunity but still refused to testify, was not protected from prosecution under this section. People v. Castango, 674 P.2d 978 (Colo. App. 1983).   Certain language from former federal statute. Language in section beginning with “but no such witness may be prosecuted” is almost a verbatim copy of the former federal immunity statute, 18 U.S.C. § 2514. Wheeler v. District Court, 184 Colo. 193 , 519 P.2d 327 (1974).   Grand jury witness's right to suppress intercepted communications. A grand jury witness has a statutory right to seek the suppression of intercepted communications as well as evidence derived therefrom, and this right is not impaired by the court's grant of transactional immunity since, while such immunity adequately safeguards the witness's privilege against self-incrimination, it does not protect the witness's privacy interest in the contents of the intercepted communications. In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).   Immunized grand jury testimony cannot be used in an affidavit supporting a search warrant against the person giving the immunized testimony. Such use falls directly within the provision protecting the defendant from penalty on account of the testimony given. People v. Henson, 705 P.2d 996 (Colo. App. 1985).   Extent of immunity. When the extent of a grant of immunity is ambiguous and the actions or degree of participation covered by the grant of immunity are not ascertainable, the grant of immunity must extend to the defendant's participation in the entire transaction. People v. Romero, 712 P.2d 1081 (Colo. App. 1985), rev'd, 745 P.2d 1003 (Colo. 1987), cert. denied, 108 U.S. 1759, 108 S. Ct. 1296, 99 L. Ed. 2d 506 (1988).   Loss of immunity. When a defendant has acted with reasonable and detrimental reliance on a governmental promise involving a grant of immunity, the government must be stopped from going back on its promise. People v. Romero, 712 P.2d 1081 (Colo. App. 1985), rev'd, 745 P.2d 1003 (Colo. 1987), cert. denied, 108 U.S. 1759, 108 S. Ct. 1296, 99 L. Ed. 2d 506 (1988).   Once a criminal defendant demonstrates that he has been compelled to testify under a grant of use immunity, the prosecution is prohibited from using the compelled testimony in any respect and the prosecution has the duty to prove that evidence it proposes to use is derived from an independent source. People v. Reali, 895 P.2d 161 (Colo. App. 1994).   Where prosecutors were exposed to defendant's immunized testimony but defendant had previously made a detailed statement concerning her part in the crime and defendant's counsel provided additional information to the prosecutors that was not referred to in the detailed statement, possible prosecutorial use of information from the immunized testimony was not a structural defect in the trial and a harmless error analysis was appropriate. In conducting such analysis court was entitled to consider the fact that defendant's participation in the crime was not seriously contested at trial. People v. Reali, 895 P.2d 161 (Colo. App. 1994); People v. Reali, 950 P.2d 645 (Colo. App. 1997).   Mere fact that witness observed the defendant at a hearing in which the defendant gave immunized testimony does not constitute a use of that testimony. Defendant could have been compelled to appear before the witness and to speak even in the absence of the grant of immunity since the right against self-incrimination does not extend to non-testimonial actions. People v. Reali, 895 P.2d 161 (Colo. App. 1994).   Refusal to testify after receiving immunity deemed contempt. A witness who, despite receiving immunity, persists before a trial court judge in refusing on fifth amendment grounds to supply grand jury testimony, commits contempt and may be punished summarily. People v. Lucero, 196 Colo. 276 , 584 P.2d 1208 (1978).   A witness who refused to testify after being granted immunity was guilty of contempt. People v. Mulberry, 919 P.2d 835 (Colo. App. 1995).   Immunity granted a defendant under this section was universal and therefore all jurisdictions were precluded from using defendant's testimony in subsequent prosecution against him. People v. Mulberry, 919 P.2d 835 (Colo. App. 1995).   Applied in Westerberg v. District Court, 181 Colo. 10 , 506 P.2d 746 (1973), cert. denied, 414 U.S. 1162, 94 S. Ct. 925, 39 L. Ed. 2d 115 (1974); People v. Marquez, 644 P.2d 59 (Colo. App. 1981).