Oliver North v. United States

910 F 2d 843 (1990)

North gained immunity under use immunity, the testimony could not be used to try or indict--due to a TV appearance by North before the Congress.

North was indicted on 12 counts and convicted on three. He appealed his convictions to the United States Supreme Court, which overturned his conviction. In making its ruling, the Court used Kastigan case (1922) as a reference, Court pointed out that the government, in making its presentation, must rely on a "preponderance of the evidence"--and that this was a fair doctrine, when applied to hearings in general. If this isn't done, it is more than a "harmless error:" it must be harmless beyond a reasonable doubt.. This standard is referred to by the Court as "meeting the presentation."

This, the Court pointed out, may be a difficult burden for the government, in a prosecutory role, to meet.

Witnesses in the trial hearing, the Court said, had made use of material which they had obtained--in part--from viewing televised Congressional hearings at which North had appeared. The Court pointed out that this made a good part of the crucial testimony inadmissible as evidence, since North had made the testimony or statements before the Congress on television, in a different capacity and context, and with a different understanding as to the impact of his testimony--and even of the rules which would govern his testimony--than the other witnesses at the trial hearing.

Such televised hearings, in such a situation, the Court pointed out, were viewed by the witnesses at the hearing before they had been sworn under oath for their testimony, so they had viewed this North televised testimony in a capacity other than as witnesses to the Court for the hearing. Had these witnesses been under oath at the time of their viewing of the North television appearances, this wouldn't have impacted upon their credibility, or the credibility of the government's case.

As a result of the ruling, another example was established for the principle that the Court need not respect a Congressional grant of immunity in order to compel testimony during Congressional hearings. Such a grant, the Court pointed out, must be undertaken by the Congress with the full knowledge of the risks involved. One of those risks, it reiterated, is that any subsequent use of such testimony in the private courtroom may be jeopardized. That is, once a witness before a Congressional hearing has appeared before the tv cameras under a grant of immunity, and given testimony under such a grant, any further use of such testimony must be subjected to the "preponderance of evidence," and "meeting of the presentation" doctrines.

The Court added that such testimony could not have helped but serve to refresh the memories of some of the witnesses. But there was even more potential for impact of such televised testimony than this, in that, if a not-yet-under-oath witness were to view such testimony, not only might their memory be refreshed, but, due to the tone of the questioning by the Congressional Committee members--which was also televised--the potential witness's own testimony might become prejudiced and cloudy. Having heard North presented in such a light, the potential witness might re-interpret their own memories in such a way as to recall North in a less-favorable light than would actually be fair, since the questions being asked by the Congressional Committee members--in being asked of North under a grant of immunity from prosecution--were of a potentially more volatile and less responsible nature.

Because of this less responsible overall tone, few if any of the questions asked North and also televised could be viewed as useable courtroom material. Nor could any remembrance of such testimony by North be useable as testimony by another party in North's private hearing.

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