A critical analysis of the third circuit's test for due process violations in denials of defense witness immunity requests

Several Supreme Court cases in the latter half of the 20th Century established a criminal defendant's due process right to put forward an effective defense. To put forward an effective defense, one must be able to introduce exculpatory evidence on one's behalf. A defendant's witness may claim the right against self-incrimination, in which case the defendant may request immunity for the witness so that he will testify. If that request is denied, a defendant's due process right to put forward an effective defense may be implicated. The refusal to grant defense witness immunity is one instance of suppression of evidence. In a string of cases in the Third Circuit, the courts have implemented a test for determining under what conditions a due process violation occurs in this situation. But, there is significant reason to believe that in implementing the test the court has relied on incorrect assumptions. This paper discusses how the court has relied on unwarranted assumptions to make due process determinations, and concludes that in so doing it has imposed too high a standard for a due process violation. First, the court interprets the test as a test for a due process violation, when there is reason to believe that the court articulating the test meant it to be a test for the appropriateness of judicially created immunity as the remedy for an existing due process violation. Second, the court makes an unwarranted assumption that any strong governmental interest countervails against a grant of witness immunity. Third, the court imposes too high a standard for determining what counts as a strong governmental interest because it does not give sufficient weight the context of the determination. These three unwarranted assumptions suggest that the court has imposed too high a standard for determining due process violations.