The Indiana Court of Appeals made it abundantly clear that if you want to interfere with a criminal proceeding by refusing to testify and do so with a grant of immunity, you will go to jail. A key new case on this rule is the topic of this blog post.
In Michael Leroy Tunis v. State of Indiana, 2019 Ind. App. LEXIS 322, Tunis was called upon to testify against Samuel Jude Clark in Clark’s trial for alleged theft and conspiracy. Tunis immediately asserted his Fifth Amendment privilege and right not to incriminate himself, leading the Trial Court to grant him immunity from prosecution if he testified so there was no criminal risk. Tunis continued to plead the fifth despite his new immune status. This refusal to testify against Mr. Clark prompted the Trial Court to seize Mr. Tunis and sentence him to six months in jail. What put the nail in Mr. Tunis’ coffin though was his additional gesturing to the defendant. The previous day Mr. Tunis had apparently nodded at Mr. Clark while also donning a faint smile. The Court read those gestures as an unspoken promise not to testify against the defendant.
When the Court believes that you have defied its inherent authority, it acts in a manner consistent with parents whose children defy their authority, they “ground” you. Contempt is essentially the Court “grounding” an individual who has defied its authority in order to deter that individual and others from acting the same way. The huge difference between the Court and your parents is that your parents didn’t have the entire police force ensuring their decisions were enforced.
The message should be received loud and clear that if you are called upon to testify in a criminal proceeding and are granted immunity, you must testify. How does this fortification of coercive power affect regular citizens of the State of Indiana? Well, some of us will undoubtedly be called upon to testify, and the Court has decided that the sound administration of justice will trump an individual’s right not to be compelled to speak. This invokes First Amendment issues; however, the United States Supreme Court has also adopted this same stance, namely that if someone should be compelled to testify in order to properly conduct a criminal proceeding, that compulsion is justified so long as there is immunity if there is a criminal risk. No one likes compelled behavior, and Indiana has taken a rather stern stance by upholding a six-month sentence for refusing to testify. Despite the Court declaring its decision is purely a punishment, understand also the purpose is to deter others from doing the same.
There is no legal reason for refusing to testify against a defendant once the Court grants you immunity, which again means you cannot be criminally charged from your testimony. One silver or protective lining found in this decision is that the Court left open the possibility that one who refuses to testify may not face such a severe sentence if they did not act “willfully.” If the refusal is based on the advice of counsel, this could potentially shield yourself from jail time, if not the contempt altogether. Yet, the Court has previously upheld a contempt finding when the individual was relying on his counsel’s advice, demonstrating that this is still muddy legal water. The gesturing by Tunis further cemented his “willful” behavior not to testify against the defendant, and the Appeals Court, although not explicitly stated, seems to lean on that fact to sustain its decision to uphold the six-month jail sentence as “reasonable” for someone who refuses to testify. Who knew that not speaking could get someone knee-deep into a jail sentence? Good attorneys do and now so do you.
Once again, you should testify if called upon and granted immunity as a general rule and must defer to your counsel. You do not have to testify if you have not been granted immunity or are the defendant in the case. The State must offer you immunity in exchange for your testimony, and the immunity must place the witness “in substantially the same position as if he had properly exercised his privilege to remain silent.” This blog post is written by attorneys at Dixon & Moseley, P.C. who handle criminal cases and appeals throughout the State. It is intended for educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.
