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Aaron Hernandez's fiancee granted immunity for testimony
0:43 | NFL
Aaron Hernandez's fiancee granted immunity for testimony
Tuesday February 10th, 2015

While heavy snow prevented the Aaron Hernandez trial from proceeding on Tuesday, a major development took place that could change the dynamics of the trial: Bristol County (Mass.) prosecutors have granted immunity to Shayanna Jenkins, Hernandez’s fiancée and mother of his two-year-old daughter.

Jenkins has refused to cooperate with prosecutors, who are hampered by a lack of murder weapon and lack of eyewitness to Odin Lloyd’s death. But prosecutors believe that Jenkins would become a crucial witness if she truthfully testifies. Prosecutors suspect Hernandez used a .45-caliber Glock pistol to kill Lloyd at an industrial park and then gave the gun to Jenkins back at his North Attleboro (Mass.) home. He then allegedly asked Jenkins to hide or destroy the gun, which has never been found. But witness testimony, including that of Jenkins’ sister (and Lloyd's girlfriend) Shaneah Jenkins, and surveillance video from Hernandez’s home, indicate that Shayanna Jenkins held a black garbage bag hours after Lloyd’s death. There is no direct proof that this bag contained a gun, but the bag remains a source of intense suspicion.

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The main legal benefit of immunity for Jenkins is that if she now testifies to helping Hernandez cover up Lloyd’s murder, she would not be charged with conspiracy, accessory after the fact, obstruction of justice and other felony charges that would collectively threaten her with decades of prison time. Jenkins would thus ensure that she is free to raise her and Hernandez’s daughter, rather than run the risk of both parents being put behind bars for many years.

Impact on Hernandez’s defense if Shayanna Jenkins testifies the gun was in the bag.

Should Jenkins testify that the bag contained the Glock pistol, Hernandez’s attorneys would need to quickly reformulate their defense strategy. The reformulation would depend on what exactly Jenkins says. Jenkins testifying that Hernandez gave her the gun does not automatically prove he used the gun to murder Lloyd. Consider the possibility of Jenkins testifying that while Hernandez gave her the gun to hide, the actual murderer was alleged accomplice Carlos Ortiz or alleged accomplice Ernest Wallace. She might say Hernandez was only trying to help out his friends Carlos and Ernest. Hernandez could still be convicted, but he would appear less of a criminal mastermind and more of an accessory to murder.

Nonetheless, Jenkins confirming the existence of the murder weapon in the bag would cast a dark cloud over Hernandez’s defense. This particularly true in Massachusetts, a state that recognizes “joint venture” prosecutions. Joint venture means a person can be convicted of murder if he or she actively assisted in the carrying out of the murder, even if a different person pulled the trigger.

Shayanna Jenkins could still refuse to testify.

The granting of immunity does not automatically mean Shayanna Jenkins will testify. Immunity only means that Jenkins can’t self-incriminate through truthful testimony in the Hernandez trial. Jenkins can thus no longer effectively plead the Fifth Amendment as a means of avoiding testimony since the Fifth Amendment only protects against self-incrimination. But Jenkins could still refuse to testify: the law doesn’t allow for a witness to be physically coerced into speaking while on the stand. Consequently, Jenkins could take the stand and then refuse to answer prosecutors’ questions. Doing so would come with a cost. Judge Susan Garsh would find Jenkins in contempt of court and jail her until she agrees to testify. Jenkins’ incarceration would continue through the end of Hernandez’s trial and possibly beyond. But Jenkins would succeed in not providing testimony that implicates Hernandez.

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In addition to not wanting to implicate Hernandez, Jenkins may not agree to testify because immunity doesn’t resolve all of her legal issues. Most importantly, immunity does not eliminate Jenkins’ prior perjury charges. Jenkins was charged in 2013 with providing knowingly false grand jury testimony. Her testimony conflicted with grand jury testimony provided by Hernandez’s home cleaning company. Prosecutors, however, would likely drop the perjury charges if Jenkins testifies: Prosecutors are mainly interested in Hernandez, whom they believe is Lloyd’s murderer, while those who may have helped Hernandez are of secondary concern.

It is also possible that Jenkins agrees to testify but then testifies in a way that prosecutors regard as intentionally untruthful. In that scenario, Jenkins could face a new round of perjury charges. Under Massachusetts law, a judge has complete discretion in determining length of prison sentence for a person found guilty of committing perjury in a murder trial. Jenkins thus risks a lengthy prison sentence if she testifies and knowingly lies. Whether prosecutors could prove, beyond a reasonable doubt, that she knowingly lied is a separate matter and would depend on available evidence.

Spousal immunity won’t be a factor, even if Hernandez and Jenkins quickly get married. 

If you are wondering if Hernandez and Jenkins could hastily marry so that Jenkins could avoid taking the stand, no, that plan won’t work. In Massachusetts, the spousal privilege only extends to conversations that took place during a marriage, not before a marriage. The privilege also is limited to communications, not observations. The conversations and observations that matter in this trial took place in 2013, in the hours and days following Lloyd’s death.

The spousal privilege in Massachusetts also requires a marriage license. As a result, Hernandez and Jenkins arguing that they enjoyed a “common law” marriage by living together in 2013 would not work.

Bottom line: trying to get married won’t help out either Hernandez or Jenkins for purposes of this trial.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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