State v. Oatney

Kastigar has been used to determine the scope of derivative use immunity, and can be violated in two ways. First, a Kastigar violation can occur if the government uses the immunized information “to motivate another witness to give incriminating testimony.” Second, a violation can occur if the content of a witness’s subsequent testimony is “‘shaped, altered, or affected’ by such exposure.”

The State appealed a pre-trial order of Defendant’s retrial proceedings. The State assigned error to the trial court for precluding the witness to present testimony that violates the immunity agreement of the Defendant, even if defense counsel represents that evidence shows the witness committed the crime. Defendant disclosed information, implicating a State witness, in exchange for a promise that his statement and derivative evidence would not be held against him. On appeal, the State argued that (1) if the Defendant argued that the witness committed the crime, that would open the door for the State to rebut that accusation and (2) such arguments would permit the State to call the witness thus breaking the causal chain between the witness's exposure to Defendant’s immunized statement and the motivation to testify. In response, the Defendant raised a cross-assignment of error. Kastigar has been used to determine the scope of derivative use immunity and can be violated in two ways. First, a Kastigar violation can occur if the government uses the immunized information “to motivate another witness to give incriminating testimony.” United States v.  Slough, 641 F3d 544, 549 (DC Cir 2011). Second, a violation can occur if the content of a witness’s subsequent testimony is “shaped, altered, or affected’ by such exposure.” United States v. Poindexter, 951 F2d 369, 373 (DC Cir 1991). The Court reasoned that the witness’s testimony would violate Kastigar because the testimony would be altered, shaped, or affected by that exposure. Affirmed.