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Under Section 513.308 of the Missouri Revised Statutes, a party can obtain an order directing a judgment debtor to be examined under oath regarding the existence and location of any assets, liabilities or sources of income that could be used to satisfy the judgment. In order to encourage truthful testimony and protect judgment debtors from self-incrimination, the prosecutor can chose to grant immunity for statements made during the examination.

State ex rel. Nothum v. Walsh

In State ex rel. Nothum v. Walsh, the Nothums were ordered to testify regarding their means to satisfy a judgment. When Mr. Nothum took the stand, he invoked his Fifth Amendment privilege against self-incrimination. The trial court ordered Mr. Nothum to answer the questions because, prior to the examination, the assistant prosecuting attorney granted immunity to “protect [the Nothums] from any offense related to the contents of [their] statement[s].” However, Mr. Nothum continued to plead the Fifth and the trial court found the Nothums in contempt and ordered them to be jailed. On appeal, the court examined the scope of immunity granted by Section 513.308.2 and determined that the prosecutor intended to grant the Nothums the broadest immunity possible. Again, when questioned, the Nothums invoked their Fifth Amendment right. The appellate court judge found them in contempt once again. The case was then transferred to the Missouri Supreme Court to determine whether the lower courts abused their discretion by ordering the Nothums to testify despite invoking their privilege against self-incrimination.

If the scope of the immunity granted affords the same amount of protection that pleading the Fifth does, then the lower courts were justified in requiring the Nothums to testify; however, if the immunity granted was less inclusive in scope, then the Nothums were within their legal right to plead the Fifth.

Three Types of Immunity

There are three different types of immunity the prosecutor can grant. The first two types of immunity prevent the prosecution from using evidence that comes from testimony; however, if the prosecution receives evidence from another source, the witness can still be prosecuted for that crime. “Use immunity” provides the least amount of protection and only prevents the prosecution from directly using the immunized testimony. Slightly broader, “derivative use immunity” prevents direct and indirect usage of the immunized testimony.

The amount of protection granted by “derivative use immunity” is equal to that of the Fifth Amendment right against self-incrimination. By pleading the Fifth it is impossible for the prosecution to later use the witness’s testimony against him because no testimony is actually given; however, just like derivative use immunity, the witness is not protected from any other evidence that could be used to incriminate him.

In contrast, “transactional immunity” provides the most protection by giving full immunity for the entire offense to which the testimony relates. In other words, the witness can never be prosecuted for the crime regardless of the source of the evidence.

Federal Law Addressing Use Immunity

The Missouri Supreme Court turned down the prosecutor’s argument that federal cases find that the grant of use immunity includes derivative use immunity. The Court emphasized that there is an important difference in the wording of the Missouri statute compared to the federal statute. The federal statute, 18 U.S.C. § 6002, explicitly provides that the use immunity granted by that statute prevents the prosecution from using “any information directly or indirectly derived from [judgment debtor’s] testimony.” This type of illustrative language is not found in Section 513.308. The Missouri Supreme Court also noted that other sections of the Missouri Revised Statutes afford both derivative use and transactional immunity in many circumstances outside judgment debtor examinations. The wording of those sections is drastically different from the wording of Section 513.308; therefore, if the legislature had intended to provide derivative use immunity for judgment debtor examinations, it could have easily done so in the wording of Section 513.308.

Scope of Immunity Granted by Section 513.308

A prosecutor cannot grant broader immunity than is allowed by statute. To determine whether the lower courts abused their discretion by compelling the Nothum’s to testify despite their invocation of the Fifth Amendment, the Missouri Supreme Court analyzed the wording of the Section 513.308 and determined that the language of the statute grants only use immunity, the narrowest form of immunity. Because the immunity afforded by Section 513.308 is not as broad as the protection given by the Fifth Amendment, the Nothum’s were well within their legal rights to refuse to testify.