In any criminal action or grand jury investigation, if a person refuses to answer any question or to produce evidence of any kind solely on the ground that providing evidence may tend to incriminate such person, the Superior Court, upon motion of the Attorney General, may order such person to answer the question or produce the evidence after notice to the witness and a hearing. Upon such an order being issued, the witness must comply and testify. As a result of such order, however, the witness may not be prosecuted or subject to penalty or forfeiture for or on account of any transaction, matter or thing relating to the testimony of the witness, provided that, but for the order, the witness would have had a privilege from testifying. The immunity, however, does not protect the witness from prosecution or penalty or forfeiture for any perjury, false statement or contempt committed in answering or failing to answer or in producing or failing to produce evidence in accordance with the order. Further, any testimony given or evidence produced is not by virtue of the order rendered inadmissible in evidence upon any criminal proceeding concerning such perjury, false statement or contempt.

A court may not issue an order compelling testimony if the court finds that (1) the witness may be subjected to criminal prosecution relating to the same transaction or occurrence under the laws of the United States or any other state and that such evidence so compelled could be used against the witness in any such prosecution, or (2) such an order would otherwise be clearly contrary to the public interest.113 Where neither of these elements is found, the court has discretionary power to issue an order.114

No statement or other evidence obtained from any person who has been compelled to make such statement or produce such evidence by any court of competent jurisdiction of the United States or any other state pursuant to a claim of privilege and court order under a similar law is admissible in evidence in any criminal prosecution in Delaware against such person arising out of the same transaction or occurrence.115

In an action under the Delaware Racketeer-Influenced and Corrupt Organization Act116 or an investigation by the Attorney General under that Act, the Attorney General may seek an order from the Superior Court requiring the witness to testify and/or produce evidence, notwithstanding the refusal of the witness to do so on the basis of the privilege against self-incrimination.117 If the Superior Court issues the order, the State is precluded from using the testimony or evidence, as well as any information directly or indirectly derived from the testimony or evidence, against the witness in a criminal case, except in a prosecution for perjury or contempt.118

113. 11 Del. C. § 3506(a); State v. Conner, 295 A.2d 704, 707 (Del. 1972).

114. State v. Conner, 295 A.2d 704, 708 (Del. 1972).

115. 11 Del. C. § 3506(b).

116. 11 Del. C. ch. 15.

117. 11 Del. C. § 3502(c).

118. 11 Del. C. § 3502(a).

© 2010  David L. Finger