Title 18 U.S.C. § 6002 provides that
"no testimony or other information compelled under the order [of
a federal court] (or any information directly or indirectly derived
from such testimony or other information) may be used against the
witness in any criminal case."
When respondent appeared before a grand jury investigating
price-fixing activities in the corrugated container industry, he
was granted use immunity pursuant to § 6002 for his testimony.
Subsequently, in civil antitrust actions brought in Federal
District Court by petitioner purchasers of corrugated containers,
respondent appeared, pursuant to a subpoena, for a deposition. At
the deposition, questions were read from the transcript of his
immunized grand jury testimony and rephrased to include the
transcript answer, and then respondent was asked if he had "so
testif[ied]" before the grand jury. He refused to answer each
question, asserting his Fifth Amendment privilege against
self-incrimination. Granting petitioners' motion to compel
respondent to answer, the District Court held him in contempt when
he continued to claim his privilege. The Court of Appeals reversed,
holding that respondent was entitled to assert his Fifth Amendment
privilege, since his deposition testimony was not protected under §
6002, but could be used against him in a subsequent criminal
action.
Held: A deponent's civil deposition testimony, such as
that in question in this case, repeating verbatim or closely
tracking his prior immunized testimony, is not, without duly
authorized assurance of immunity at the time, immunized testimony
within the meaning of § 6002, and therefore may not be compelled
over a valid assertion of his Fifth Amendment privilege. Pp.
459 U. S.
252-264.
(a) To construe § 6002, as petitioners urge, so as to hold that
the grant of immunity compelled respondent to give testimony at the
civil deposition that repeats verbatim or closely tracks his prior
testimony sweeps further than Congress intended and could hinder
the Government's enforcement of its criminal laws by turning use
immunity into a form of transactional immunity for subjects
examined in the immunized proceeding. Use immunity is intended to
immunize and exclude from a subsequent criminal trial only that
information to which the Government expressly has surrendered
future use. The purpose of § 6002 is to limit the
Page 459 U. S. 249
scope of immunity to a constitutionally required level, as well
as to limit the use of immunity to those cases in which the
Government determines that gaining the witness' testimony outweighs
the loss of the opportunity for criminal prosecution of that
witness. Pp.
459 U. S.
255-261.
(b) Petitioners' proposed construction of § 6002 also could put
the deponent to some risk unless he receives an assurance of
immunity or exclusion that the courts cannot properly give.
Silence, on the other hand, preserves the deponent's rights and the
Government's interests, as well as the judicial resources that
otherwise would be required to make the many difficult judgments
that petitioners' interpretation of § 6002 would require. Pp.
459 U. S.
261-263.
661 F.2d 1145, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, MARSHALL, and REHNQUIST, JJ., joined. MARSHALL,
J., filed a concurring opinion,
post, p.
459 U. S. 264.
BRENNAN, J.,
post, p.
459 U. S. 271,
and BLACKMUN, J.,
post, p.
459 U. S. 272,
filed opinions concurring in the judgment. STEVENS, J., filed a
dissenting opinion, in which O'CONNOR, J., joined,
post,
p.
459 U. S.
282.
JUSTICE POWELL delivered the opinion of the Court.
Pursuant to the federal use immunity provisions, 18 U.S.C. §§
6001-6005, a United States Attorney may request an order from a
federal court compelling a witness to testify even though he has
asserted his privilege against self-incrimination. Section 6002
provides, however, that
"no testimony or other information compelled under the order (or
any information directly or indirectly derived from such testimony
or other information) may be used against the witness in any
criminal case. . . ."
The issue presented in this case is whether a deponent's civil
deposition testimony, repeating
Page 459 U. S. 250
verbatim or closely tracking his prior immunized testimony, is
immunized "testimony" that can be compelled over the valid
assertion of his Fifth Amendment privilege.
I
Respondent John Conboy is a former executive of a defendant in
In re Corrugated Container Antitrust Litigation, M.D.L.
310 (SD Tex.). In January, 1978, United States Department of
Justice attorneys interviewed Conboy following a promise of use
immunity. Conboy subsequently appeared before a grand jury
investigating price-fixing activities and, pursuant to 18 U.S.C. §
6002, was granted formal use immunity for his testimony.
Following the criminal indictment of several companies, numerous
civil antitrust actions were filed in various United States
District Courts. Those actions were consolidated for discovery in
the District Court for the Southern District of Texas. Petitioners
here are purchasers of corrugated containers who elected to opt out
of the class action proceedings and pursue their own causes of
action against manufacturers. The District Court ordered that
portions of the immunized Government interview and grand jury
testimony of certain witnesses, including that of Conboy, be made
available to lawyers for the class and opt-outs. [
Footnote 1]
Pursuant to a subpoena issued by the District Court for the
Northern District of Illinois, Conboy appeared in Chicago for a
deposition at which he, his counsel, and petitioners' counsel had
copies of his immunized testimony. The transcripts were marked as
deposition exhibits so that all could follow the intended
examination. The questioning fell into the following pattern: a
question was read from the transcript; it then was rephrased to
include the transcript answer (
i.e.,
Page 459 U. S. 251
"Is it not the fact that . . ."); finally, Conboy was asked if
he had "so testif[ied]" in his immunized interview and grand jury
examination. [
Footnote 2]
Conboy refused to answer each question, asserting his Fifth
Amendment privilege against self-incrimination.
The District Court granted petitioners' motion to compel Conboy
to answer the questions. [
Footnote
3] When Conboy continued to claim his privilege, the District
Court held him in contempt, but stayed its order pending appeal. A
panel of the Court of Appeals for the Seventh Circuit affirmed the
contempt order, holding that,
"[b]ecause the questions asked in this deposition were taken
verbatim from or closely tracked the transcript of Conboy's grand
jury testimony, we believe that his answers at the deposition would
be 'derived from' the prior immunized [testimony], and therefore
unavailable for use in any subsequent criminal prosecution."
In re Corrugated Container Antitrust Litigation, Appeal
of Conboy, 655 F.2d 748, 751 (1981).
On rehearing en banc, the Court of Appeals reversed the District
Court. 661 F.2d 1145 (1981). It first determined that Conboy's
alleged fear of prosecution was more than "fanciful,"
id.
at 1152, and that Conboy therefore was entitled to assert his Fifth
Amendment privilege unless his deposition
Page 459 U. S. 252
testimony could not be used against him in a subsequent criminal
action,
see id. at 1153. [
Footnote 4] The court then held that, under § 6002, absent
a separate and independent grant of immunity, [
Footnote 5] a deponent's civil deposition
testimony that repeats verbatim or closely tracks his prior
immunized testimony is not protected. While acknowledging that
verbatim questions "of course [would be] derived" from the
immunized testimony, the court reasoned that the answers to such
questions "are derived from the deponent's
current,
independent memory of events," and thus "necessarily create a
new source of evidence" that could be used in a subsequent
criminal prosecution against Conboy.
Id. at 1155 (emphasis
in original).
We granted certiorari to resolve the conflict in the Courts of
Appeals, [
Footnote 6] 454 U.S.
1141 (1982), and now affirm.
II
It is settled that government must have the power to compel
testimony "to secure information necessary for effective law
enforcement."
Murphy v. Waterfront Comm'n, 378 U. S.
52,
378 U. S. 79
(1964). [
Footnote 7] For many
years, however, a person who was compelled to testify under a grant
of governmental
Page 459 U. S. 253
immunity could not be prosecuted for any conduct about which he
had testified.
See New Jersey v. Portash, 440 U.
S. 450,
440 U. S. 457
(1979). Prosecutors therefore were reluctant to grant such
"transactional" immunity to potential targets of criminal
investigations.
See S.Rep. No. 91-617, p. 53 (1969).
The "major purpose" of the Organized Crime Control Act of 1970,
Pub.L. 91-452, 84 Stat. 922, of which § 6002 was a key provision,
was
"to provide the criminal justice system with the necessary legal
tools to . . . strengthe[n] the evidence gathering process and
insur[e] that the evidence will then be available and admissible at
trial."
116 Cong.Rec. 35200 (1970) (statement of Rep. St. Germain).
Congress sought to make the grant of immunity more useful for law
enforcement officers through two specific changes. First, Congress
made the grant of immunity less expansive [
Footnote 8] by repealing the authority for
transactional immunity and providing for the less comprehensive use
immunity authorized in § 6002. [
Footnote 9] Second, Congress gave certain officials in
Page 459 U. S. 254
the Department of Justice [
Footnote 10] exclusive authority to grant immunities.
[
Footnote 11]
The Court upheld the constitutionality of the use immunity
statute in
Kastigar v. United States, 406 U.
S. 441 (1972). The power to compel testimony is limited
by the Fifth Amendment, and we held that any grant of immunity must
be coextensive with the privilege. We were satisfied, however,
Page 459 U. S. 255
that § 6002 provided this measure of protection, and thus
"removed the dangers against which the privilege protects."
Id. at
406 U. S. 449.
In rejecting the argument that use and derivative-use immunity
would not adequately protect a witness from various incriminating
uses of the compelled testimony, we emphasized that "[t]he statute
provides a sweeping proscription of any use, direct or indirect, of
the compelled testimony and any information derived therefrom. . .
."
Id. at
406 U. S. 460.
We added that, once a defendant establishes that he has testified
under a grant of immunity,
"the prosecution [has] the affirmative duty to prove that the
evidence it proposes to use is derived from a legitimate source
wholly independent of the compelled testimony."
Ibid. Thus,
"immunity from use and derivative use 'leaves the witness and
the Federal Government in substantially the same position as if the
witness had claimed his privilege' in the absence of a grant of
immunity."
Id. at
406 U. S.
458-459 (quoting
Murphy, 378 U.S. at
378 U. S.
79).
III
With the foregoing statutory history and relevant principles in
mind, we turn now to this case. It is not disputed that the
questions asked of Conboy were directly or indirectly
derived from his immunized testimony. The issue as presented to us
is whether the causal connection between the questions and the
answers is so direct that the
answers also are derived
from that testimony, and therefore should be excluded under the
grant of immunity.
Petitioners' argument is based on the language of § 6002 and on
a common understanding of the words "derived from." The questions
formulated on the basis of immunized testimony are clearly "derived
from" the prior testimony. Thus, the answers that repeat verbatim
or closely track a deponent's testimony are necessarily also
"derived from" and "tainted by" such testimony. Petitioners
therefore find no basis for the distinction made by the Court of
Appeals between questions and answers responsive to those same
questions.
Page 459 U. S. 256
An answer, by its very nature, is evoked by, and responds to,
information contained in a question.
Conboy's position is also straightforward: questions do not
incriminate; answers do. Unlike the questions, answers are not
directly or indirectly derived from the immunized grand jury or
interview transcripts, but from the deponent's current, independent
memory of events. Even when a deponent's deposition answers are
identical to those he gave to the grand jury, he is under oath to
tell the truth, not necessarily as he told it before the grand
jury, but as he knows it now. Each new statement of the deponent
creates a new "source." In sum, the initial grant of immunity does
not prevent the prosecutor from prosecuting; it merely limits his
sources of evidence.
Although the parties make their arguments in terms tracking
those of the statute -- whether the deposition testimony is
"derived from" the prior testimony -- it is clear that the crux of
their dispute is whether the earlier grant of immunity itself
compelled Conboy to talk. [
Footnote 12] Petitioners contend that the prior grant of
immunity already had supplanted Conboy's Fifth Amendment privilege
at the time of the civil deposition. Petitioners would limit this
immunity, of course, to testimony that "closely tracks" his prior
immunized testimony. It is argued that this would not threaten the
Government's need for admissible evidence or the individual's
interest in avoiding self-incrimination. In the absence of such a
threat, admissible evidence should be available to civil antitrust
plaintiffs. But we cannot accept the assumptions upon which
petitioners' conclusion rests. In our view, a District Court cannot
compel Conboy to answer deposition questions over a
Page 459 U. S. 257
valid assertion of his Fifth Amendment right, absent a duly
authorized assurance of immunity at the time. [
Footnote 13]
We note at the outset that, although there may be practical
reasons for not testifying, [
Footnote 14] as far as the deponent's Fifth Amendment
right is concerned, he should be indifferent between the protection
afforded by silence and that afforded by immunity. A deponent's
primary interest is that the protection be certain. The
Government's interest, however, may be affected seriously by
whether the deponent relies at the civil deposition on his Fifth
Amendment privilege or on his prior grant of immunity. With due
recognition of petitioners'
Page 459 U. S. 258
need for admissible evidence, our inquiry then is whether this
need can be met without jeopardizing the Government's interest in
limiting the scope of an immunity grant or encroaching upon the
deponent's certainty of protection.
A
Questions taken verbatim from a transcript of immunized
testimony could evoke one of several responses from a deponent: (i)
he could repeat or adopt his immunized answer; [
Footnote 15] (ii) he could affirm that the
transcript of his immunized answers accurately reflects his prior
testimony; (iii) he could recall additional information responsive
to the question, but not disclosed in his immune testimony; or (iv)
he could disclose information that is not responsive to the
question. Petitioners do not contend, nor could they, that the
prior grant of use immunity affords protection for
all
self-incriminating information disclosed by the immunized witness
on
any occasion after the giving of the immunized
testimony. Rather, petitioners argue that only the first three
responses would be "derived from" his immune testimony, and
therefore would be unavailable for use against the deponent in any
subsequent criminal prosecution.
Petitioners' premise is that the deposition of Conboy is
designed not to discover new information, [
Footnote 16] but to obtain evidence
Page 459 U. S. 259
that simply repeats the statements in the immunized transcript.
[
Footnote 17] Because there
will be little opportunity for the grant of immunity to sweep in
statements on direct examination that the Government did not intend
to immunize, or for the deponent to give responses that may fall
outside of the grant of immunity and later be used against him in a
subsequent criminal prosecution, petitioners argue that Conboy's
deposition will yield only a carbon copy of the grand jury
transcript. In such a situation, it would be desirable for civil
plaintiffs, particularly those bringing private suits that
supplement the criminal enforcement of the federal antitrust laws,
to have access to the available, probative information.
But even if the direct examination is limited to the questions
and answers in the immunized transcript, there remains the right of
cross-examination, [
Footnote
18] a right traditionally relied upon expansively to test
credibility as well as to seek the truth. Petitioners recognize
this problem, but maintain that the antitrust defendants
"would be entitled to test the accuracy
Page 459 U. S. 260
and truthfulness of Conboy's repeated immunized testimony
without going beyond the confines of that testimony."
Reply Brief for Petitioners 14-15. Regardless of any limitations
that may be imposed on its scope, [
Footnote 19] however, cross-examination is intended to,
and often will, produce information not elicited on direct. We must
assume that, to produce admissible evidence, the scope of
cross-examination at the deposition cannot easily be limited to the
immunized testimony. This assumption implicates both the
Government's and the individual's interests embodied in § 6002.
B
Use immunity was intended to immunize and exclude from a
subsequent criminal trial only that information to which the
Government expressly has surrendered future use. If the Government
is engaged in an ongoing investigation of the particular activity
at issue, immunizing new information (
e.g., the answers to
questions in a case like this one) may make it more difficult to
show in a subsequent prosecution that similar information was
obtained from wholly independent sources. If a district court were
to conclude in a subsequent civil proceeding that the prior
immunity order extended to civil deposition testimony closely
tracking the immunized testimony, it in effect could invest the
deponent with transactional immunity on matters about which he
testified at the immunized proceedings. This is precisely the kind
of immunity Congress intended to prohibit. The purpose of § 6002
was to limit the scope of immunity to the level that is
constitutionally required, as well as to limit the use of
Page 459 U. S. 261
immunity to those cases in which the Attorney General, or
officials designated by him, determine that gaining the witness'
testimony outweighs the loss of the opportunity for criminal
prosecution of that witness. [
Footnote 20]
C
Petitioners' interpretation of § 6002 also places substantial
risks on the deponent. [
Footnote
21] Unless the grant of immunity assures a witness that his
incriminating testimony will not be used against him in a
subsequent criminal prosecution, the witness has not received the
certain protection of his Fifth Amendment privilege that he has
been forced to exchange. No court has authority to immunize a
witness. That responsibility, as we have noted, is peculiarly an
executive one, and only the Attorney General or a designated
officer of the Department of Justice has authority to grant use
immunity.
See 18 U.S.C. §§ 6002, 6003. Nor should a court,
at the time of the civil testimony, predetermine the decision of
the court in a subsequent criminal prosecution on the question
whether the Government has met its burden of proving that "the
evidence it proposes to use is derived from a legitimate source
wholly independent of the compelled testimony."
Kastigar,
406 U.S. at
406 U. S. 460.
Yet in holding Conboy in contempt for his Fifth Amendment silence,
the District Court below essentially predicted that a court in any
future criminal prosecution of Conboy will be obligated to protect
against evidentiary use of the deposition testimony petitioners
seek. We do not think such a predictive judgment is enough.
Page 459 U. S. 262
Petitioners' interpretation of § 6002 imposes risks on the
deponent whether or not the deposition testimony properly can be
used against him in a subsequent criminal prosecution. [
Footnote 22] Accordingly, the
District Court's compulsion order in this case, in the absence of
statutory authority or a new grant of immunity by the United States
Attorney, cannot be justified by the subsequent exclusion of the
compelled testimony. As JUSTICE MARSHALL notes in his concurring
opinion:
"Whatever justification there may be for requiring a witness to
give incriminating testimony in aid of a criminal investigation
after the Government has granted use immunity, there is no similar
justification for compelling a witness to give incriminating
testimony for the benefit of a private litigant when the Government
has not chosen to grant immunity."
Post at
459 U. S.
267.
The result of compelling testimony -- whether it is immunized or
excluded -- is that the Government's interests, as well as the
witness', suffer. Reliance on judicial exclusion of nonimmunized
testimony would be inconsistent with the congressional policy of
leaving the granting of immunity to the Executive Branch.
As the Court stated in
Maness v. Meyers, 419 U.
S. 449 (1975), compelling a witness to testify in
"reliance upon a later objection or motion to suppress would
let the cat out' with no assurance whatever of putting it
back." Id. at 419 U. S. 463.
We believe Conboy acted properly in maintaining his silence in the
face of the District Court's compulsion order, and by testing the
validity of his privilege on appeal.
IV
This Court has emphasized the importance of the private action
as a means of furthering the policy goals of certain federal
Page 459 U. S. 263
regulatory statutes, including the federal antitrust laws.
See, e.g., Perma Life Mufflers, Inc. v. International Parts
Corp., 392 U. S. 134,
392 U. S. 139
(1968);
United States v. Borden Co., 347 U.
S. 514,
347 U. S.
518-519 (1954). But private civil actions can only
supplement, not supplant, the primary responsibility of government.
Petitioners' proposed construction of § 6002 sweeps further than
Congress intended, and could hinder governmental enforcement of its
criminal laws by turning use immunity into a form of transactional
immunity for subjects examined in the immunized proceeding. It also
puts the deponent in some danger of criminal prosecution unless he
receives an assurance of immunity or exclusion that the courts
cannot properly give. Silence, on the other hand, preserves the
deponent's rights and the Government's interests, as well as the
judicial resources that otherwise would be required to make the
many difficult judgments that petitioners' interpretation of § 6002
would require. [
Footnote
23]
V
We hold that a deponent's civil deposition testimony, closely
tracking his prior immunized testimony, is not, without duly
authorized assurance of immunity at the time, immunized testimony
within the meaning of § 6002, and therefore
Page 459 U. S. 264
may not be compelled over a valid assertion of his Fifth
Amendment privilege. [
Footnote
24] The judgment of the Court of Appeals accordingly is
Affirmed.
[
Footnote 1]
The propriety of the District Court's release of grand jury
materials to the civil parties is not before the Court.
[
Footnote 2]
An example of this three-question pattern is as follows:
"Q. Who did you have price communications with at Alton Box
Board?"
* * * *
"Q. Is it not the fact that you had price communications with
Fred Renshaw and Dick Herman . . . ?"
* * * *
"Q. Did you not so testify in your government interview
statement of January 10, 1978?"
App. 29-31.
[
Footnote 3]
Chief Judge John V. Singleton, Jr., of the District Court for
the Southern District of Texas, expressly exercised the powers of
the District Court for the Northern District of Illinois pursuant
to 28 U.S.C. 1407(b). The contempt hearing was conducted by
telephone with his chambers in Houston.
[
Footnote 4]
The correctness of the Court of Appeals' conclusion that Conboy
could assert a Fifth Amendment privilege, absent some immunity, is
not before us.
[
Footnote 5]
A United States Attorney declined to authorize immunity grants
in connection with the civil depositions here.
[
Footnote 6]
Compare In re Corrugated Container Antitrust Litigation,
Appeal of Fleischacker, 644 F.2d 70, 75 (CA2 1981) (deposition
answers immunized),
and Little Rock School District v. Borden,
Inc., 632 F.2d 700, 705 (CA8 1980) (same),
with In re
Corrugated Container Anti-Trust Litigation, Appeal of Franey,
620 F.2d 1086, 1095 (CA5 1980) (answers not immunized),
cert.
denied, 449 U.S. 1102 (1981).
[
Footnote 7]
See United State v. Calandra, 414 U.
S. 338,
414 U. S. 345
(1974);
United States v. Mara, 410 U. S.
19,
410 U. S. 41
(1973) (MARSHALL, J., dissenting);
Kastigar v. United
States, 406 U. S. 441,
406 U. S.
443-444 (1972);
Murphy, 378 U.S. at
378 U. S. 93-94
(WHITE, J., concurring);
Blackmer v. United States,
284 U. S. 421,
284 U. S. 438
(1932);
Blair v. United States, 250 U.
S. 273,
250 U. S. 281
(1919);
Brown v. Walker, 161 U. S. 591,
161 U. S. 600
(1896).
[
Footnote 8]
In
Murphy, JUSTICE WHITE stated that "[i]mmunity must
be as broad as, but not harmfully and wastefully broader than, the
privilege against self-incrimination." 378 U.S. at
378 U. S. 107
(concurring opinion) (quoted with approval in 116 Cong.Rec. 35291
(1970) (statement of Rep. Poff)). In its Committee Report, the
House explained that § 6002 was not to provide an "immunity bath,"
but was to be "no broader than" the Fifth Amendment privilege.
H.R.Rep. No. 91-1549, P. 42 (1970).
[
Footnote 9]
Section 6002 provides:
"Whenever a witness refuses, on the basis of his privilege
against self-incrimination, to testify or provide other information
in a proceeding before or ancillary to -- "
"(1) a court or grand jury of the United States,"
"(2) an agency of the United States, or"
"(3) either House of Congress, a joint committee of the two
Houses, or a committee or a subcommittee of either House"
"and the person presiding over the proceeding communicates to
the witness an order issued under this part, the witness may not
refuse to comply with the order on the basis of his privilege
against self-incrimination; but no testimony or other information
compelled under the order (or any information directly or
indirectly derived from such testimony or other information) may be
used against the witness in any criminal case, except a prosecution
for perjury, giving a false statement, or otherwise failing to
comply with the order."
Section 6001(2) defines "other information" to include "any
book, paper, document, record, recording, or other material."
[
Footnote 10]
Section 6003 states:
"(a) In the case of any individual who has been or may be called
to testify or provide other information at any proceeding before or
ancillary to a court of the United States or a grand jury of the
United States, the United States district court for the judicial
district in which the proceeding is or may be held shall issue, in
accordance with subsection (b) of this section, upon the request of
the United States attorney for such district, an order requiring
such individual to give testimony or provide other information
which he refuses to give or provide on the basis of his privilege
against self-incrimination, such order to become effective as
provided in section 6002 of this part."
"(b) A United States attorney may, with the approval of the
Attorney General, the Deputy Attorney General, or any designated
Assistant Attorney General, request an order under subsection (a)
of this section when in his judgment -- "
"(1) the testimony or other information from such individual may
be necessary to the public interest; and"
"(2) such individual has refused or is likely to refuse to
testify or provide other information on the basis of his privilege
against self-incrimination."
[
Footnote 11]
Congress foresaw the courts as playing only a minor role in the
immunizing process: "The court's role in granting the order is
merely to find the facts on which the order is predicated."
H.R.Rep. No. 91-1549,
supra, at 43; H.R.Rep. No. 91-1188,
p. 13 (1970).
See 116 Cong.Rec. 35291 (1970) (statement of
Rep. Poff).
Cf. President's Commission on Law Enforcement
and Administration of Justice, The Challenge of Crime in a Free
Society 141 (1967) (recommending that "[i]mmunity should be granted
only with the prior approval of the jurisdiction's chief
prosecuting officer").
[
Footnote 12]
See Brief for Petitioners 9 ("Conboy had no Fifth
Amendment privilege to assert, because of the coextensive
protection provided by the immunity statute"); Reply Brief for
Petitioners 12 ("[R]equiring a witness to answer questions a second
time that were previously answered under a grant of immunity does
not result in an expansion of the original immunity grant").
[
Footnote 13]
JUSTICE BLACKMUN, concurring in the Court's judgment, assumes
that Conboy had a
right to remain silent at the
deposition, which, by definition, assumes the immunity order itself
does not compel a witness to testify at a civil deposition. He
discusses the "fruits" doctrine where a witness' testimony at a
deposition is "an independent act of free will," and concludes
that, "had Conboy answered the deposition questions, his testimony
would not have been protected by the original immunity grant. . .
."
Post at
459 U. S. 280.
We have no occasion to address this hypothetical. The issue is
whether Conboy can be compelled to testify --
i.e.,
whether the immunity order compels him to track his prior testimony
at the civil deposition -- over the assertion of his Fifth
Amendment rights. If, as we conclude, the original grant of
immunity does not extend to the subsequent civil proceeding, then
the trial judge lacks authority to compel Conboy to testify over
the assertion of his Fifth Amendment privilege. This is so
irrespective of whether, had he testified at the deposition, rather
than asserting the privilege, his answers could have been admitted
against him at a criminal trial. We therefore need not now decide
the extent to which civil deposition testimony, freely given by a
witness in Conboy's position, is "directly or indirectly derived"
from prior grand jury testimony.
As JUSTICE BLACKMUN's opinion makes a factual analysis under the
"fruits" doctrine, it appears to leave open the possibility that
the outcome in a subsequent criminal prosecution of the deponent
may be different in a future case because of differences in the
factual record. He nevertheless concludes, as do we, that district
courts are without power to compel a civil deponent to testify over
a valid assertion of his Fifth Amendment right, absent a separate
grant of immunity pursuant to § 6002.
[
Footnote 14]
Besides the costs of testifying against close associates, any
witness increases the risk of committing perjury the more he talks.
Cf. 18 U.S.C. § 6002 (perjured testimony not
immunized).
[
Footnote 15]
The extreme case would be where petitioners read the entire
immunized grand jury transcript; then ask the witness if that is
his testimony; and he answers simply "Yes."
[
Footnote 16]
Direct examination may not be as limited as petitioners assume.
The District Court's civil contempt order stated that the questions
asked in the deposition "were taken directly" from the immunized
transcripts, but did not define exactly what deposition questions
petitioners could ask. Other Courts of Appeals have permitted
direct questioning to go beyond mere restatements of the prior
testimony.
See In re Corrugated Container Antitrust Litigation,
Appeal of Fleischacker, 644 F.2d at 79 (compelling answers to
questions "concerning specific subjects that actually were touched
upon by questions appearing in the transcript of the immunized
testimony");
Little Rock School District v. Borden, Inc.,
632 F.2d at 705 (compelling answers as long as deposition questions
confined to "
the same time, geographical and substantive
framework as the [witness' immunized] grand jury testimony'")
(quoting Appeal of Starkey, 600 F.2d 1043, 1048 (CA8
1979)). The dissenting opinion of JUSTICE STEVENS apparently does
not attempt to indicate when questioning will exceed proper
limits.
[
Footnote 17]
For purposes of this case, we assume that the grand jury
transcripts are inadmissible as evidence in a civil trial because
the testimony is not subject to cross-examination.
Cf.
Fed.Rule Evid. 803(8) (hearsay exception for certain public
records); Fed.Rule Evid. 804(a)(1) (witness unavailable when
exempted from testifying on ground of privilege); Fed.Rule Evid.
804(b)(1) (former testimony admissible when witness unavailable and
the party against whom the testimony is now offered had an
opportunity for cross-examination).
[
Footnote 18]
Cf. Fed.Rule Civ.Proc. 26(b)(1) (stating that
depositions may be taken "if the information sought appears
reasonably calculated to lead to the discovery of admissible
evidence"); Fed.Rule Civ.Proc. 30(c) (allowing cross-examination at
depositions); Fed.Rule Civ.Proc. 32(a) (deposition "admissible
under the rules of evidence applied as though the witness were then
present and testifying"); Fed.Rule Evid. 804(b)(1) (deposition
admissible if the party against whom the testimony is now offered
in a civil action had an opportunity to develop testimony by
cross-examination).
[
Footnote 19]
See United States v. Cardillo, 316 F.2d 606, 611 (CA2
1963) (in determining whether testimony of a witness who invokes
the privilege during cross-examination may be used against
defendant, court draws a distinction between cases in which the
assertion of the privilege merely precludes inquiry into collateral
matters that bear on credibility of witnesses and those in which
assertion prevents inquiry into matters about which witness
testified on direct).
[
Footnote 20]
We need not decide whether United States Attorneys, when
designated by the Attorney General, presently have authority to
immunize the testimony of a witness in a civil proceeding when the
Government determines that the public interest would be served.
[
Footnote 21]
None of the tests set forth by Courts of Appeals that have
adopted petitioners' interpretation of § 6002 provides deponents
with certain guidance as to when they
must talk and when
they must
not. See n 16,
supra.
[
Footnote 22]
Cf. post at
459 U. S. 268
(MARSHALL, J., concurring) ("Further incriminating evidence that is
derived from compelled testimony cannot always be traced back to
its source");
n 14,
supra, (increasing risk of harm and perjury);
n 23,
infra (increasing
exposure to civil liability).
[
Footnote 23]
The dissent minimizes the enforcement interest that our
construction of § 6002 protects,
post at
459 U. S.
288-290, contending that we "misunderst[ood] the
prosecutorial interest,"
post at
459 U. S. 288.
We note, however, that, by conceding that there is some "risk" that
the deponent's testimony may hamper a prosecution,
post at
459 U. S. 293,
the dissent concedes that its interpretation of § 6002 provides at
least somewhat broader immunity than Congress intended. Moreover,
the dissent overlooks the possible difficulty of securing the
cooperation of individuals such as Conboy who may be more reluctant
to testify in the immunized proceedings if they know that later
deposition testimony may increase their exposure to civil
liability. Finally, in the dissent's judgment,
"the theoretical risk that compelled testimony could hamper a
potential prosecution [is] plainly outweighed by the enforcement
interest in allowing the deposition to go forward."
Ibid. See also post at
459 U. S. 289.
This, however, is a judgment reserved for officials of the
Department of Justice, not the federal courts, to make on a
case-by-case basis.
[
Footnote 24]
Our holding is limited to precluding district courts from
compelling testimony in a civil deposition over a valid assertion
of the Fifth Amendment privilege, absent a specific assurance of
immunity for such testimony.
JUSTICE MARSHALL, concurring.
I join the Court's decision that a witness who has given
immunized testimony may invoke the Fifth Amendment privilege at a
later proceeding in response to questions based on his immunized
testimony. Permitting a civil litigant to rely on prior immunized
testimony to defeat an otherwise valid claim of privilege would be
inconsistent with the purposes of the use immunity statute,
regardless of whether, had the witness answered voluntarily, his
answers could have been used against him in a later criminal trial.
The Court's decision today does not reach the question whether such
answers could later be admitted against the witness. In his
dissenting opinion, JUSTICE STEVENS argues that Conboy may not
assert the Fifth Amendment privilege precisely because his answers
could not properly be used against him in a later criminal trial.
Because I agree with JUSTICE STEVENS that such answers could
not be properly used in a subsequent criminal trial, I
write separately to explain why I believe respondent nevertheless
retained his Fifth Amendment privilege.
If Conboy had voluntarily answered petitioners' deposition
questions, his answers would have been "directly or indirectly
derived from" his prior testimony before the grand jury. The
questions were based solely on the transcript of respondent's grand
jury testimony. There is no suggestion that the same or similar
questions would have been asked had petitioners' attorneys not
obtained a transcript of the grand jury testimony. Thus, if
respondent had answered the questions,
Page 459 U. S. 265
his answers would not have been "derived from a legitimate
source wholly independent of the compelled testimony."
Kastigar
v. United States, 406 U. S. 441,
406 U. S. 460
(1972).
The admission of such answers at a subsequent criminal
prosecution would represent a substantial departure from the
fundamental premise of this Court's decision in
Kastigar.
In upholding the use immunity statute against an attack based upon
the Fifth Amendment privilege against self-incrimination, the Court
concluded that use immunity affords a witness protection "as
comprehensive as the protection afforded by the privilege."
Id. at
406 U. S. 449.
The Court stated that the statute "prohibits the prosecutorial
authorities from using the compelled testimony in
any
respect,"
id. at
406 U. S. 453
(emphasis in original), and that it "provides a sweeping
proscription of any use, direct or indirect, of the compelled
testimony and any information derived therefrom,"
id. at
406 U. S. 460.
If the prosecution could introduce answers elicited from a witness
by questions that would not have been asked but for the witness'
immunized testimony, the protection afforded by use immunity would
not be "as comprehensive as the protection afforded by the
privilege."
Id. at
406 U. S.
449.
I therefore agree with my Brother STEVENS that answers to the
questions posed by petitioners' attorneys could not properly have
been used at a subsequent criminal trial. It does not follow,
however, that respondent can be compelled to answer. In this case,
it is conceded that, had respondent never given the immunized
testimony before the grand jury, he would have been entitled to
invoke the Fifth Amendment privilege in response to questions
concerning the same subject matter as the questions asked at the
deposition. The only question is whether respondent is barred from
asserting the Fifth Amendment privilege because he previously
testified under a statutory grant of immunity and because his
answers to the deposition questions would be "directly or
indirectly derived" from his prior immunized testimony.
Page 459 U. S. 266
In my view, a trial judge may not constitutionally compel a
witness to give incriminating testimony solely upon a finding that
the witness' answers could not properly be used against him in a
later criminal proceeding. [
Footnote
2/1] This Court's decision in
Page 459 U. S. 267
Kastigar v. United States, supra, does not support such
compulsion. In
Kastigar, the Court was concerned with a
federal statute that permits a United States Attorney, a federal
agency, or a duly authorized representative of Congress to grant
use immunity and thereby compel a witness to give incriminating
testimony.
See 18 U.S.C. §§ 6002-6005.
Kastigar
itself involved a grant of use immunity conferred upon a witness
called to testify before a grand jury. In upholding the use
immunity statute against constitutional attack, the Court held only
that, pursuant to statutory authority to confer such immunity, the
Government may constitutionally compel incriminating
testimony in exchange for immunity from use or derivative use of
that testimony. 406 U.S. at
406 U. S. 462.
Kastigar does not hold that a trial judge, acting without
statutory authority to grant immunity, may rely on prior immunized
testimony to overrule an otherwise valid assertion of the Fifth
Amendment privilege by a deponent in a civil case.
Whatever justification there may be for requiring a witness to
give incriminating testimony in aid of a criminal investigation
after the Government has granted use immunity, there is no similar
justification for compelling a witness to give incriminating
testimony for the benefit of a private litigant when the Government
has
not chosen to grant immunity. Any interest served by
compelling the testimony
Page 459 U. S. 268
is insufficient to justify subjecting the witness to the risks
that attend the compulsion of incriminating testimony.
Whenever a witness is forced to give incriminating testimony,
there is a significant risk that fruits of that testimony will
later be used against him. Further incriminating evidence that is
derived from compelled testimony cannot always be traced back to
its source:
"A witness who suspects that his compelled testimony was used to
develop a lead will be hard-pressed indeed to ferret out the
evidence necessary to prove it. And of course it is no answer to
say he need not prove it, for though the Court puts the burden of
proof on the government, the government will have no difficulty in
meeting its burden by mere assertion if the witness produces no
contrary evidence. The good faith of the prosecuting authorities is
thus the sole safeguard of the witness' rights. [E]ven their good
faith is not a sufficient safeguard. For the paths of information
through the investigative bureaucracy may well be long and winding,
and even a prosecutor acting in the best faith cannot be certain
that, somewhere in the depths of his investigative apparatus, often
including hundreds of employees, there was not some prohibited use
of the compelled testimony."
Kastigar v. United States, 406 U.S. at
406 U. S. 469
(MARSHALL, J., dissenting).
See also Piccirillo v. New
York, 400 U. S. 548,
400 U. S.
567-568 (1971) (BRENNAN, J., dissenting from dismissal
of certiorari);
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 525
(1958). If respondent is not allowed to assert the Fifth Amendment
privilege, he may undergo numerous civil depositions, he may be
forced to elaborate upon his original testimony, [
Footnote 2/2] and his testimony
Page 459 U. S. 269
may be broadly disseminated. As a result, he may face a much
greater risk that tainted evidence will be used against him than he
initially faced following the compulsion of the grand jury
testimony. The opportunity to seek exclusion of tainted evidence is
an incomplete protection, for
"a court, at the time of the civil testimony, [cannot]
predetermine the decision of the court in a subsequent criminal
prosecution on the question whether the Government has met its
burden of proving that 'the evidence it proposes to use is derived
from a legitimate source wholly independent of the compelled
testimony.'"
Ante at
459 U. S. 261
(quoting
Kastigar v. United States, supra, at
406 U. S.
460).
Cf. Maness v. Meyers, 419 U.
S. 449,
419 U. S.
461-463 (1975).
It may be appropriate to subject a witness to these risks when
the Government has conferred use immunity pursuant to statutory
authorization, but the interests supporting compulsion of the
testimony are far weaker here. In
Kastigar, the Court
noted that the use immunity statute advanced the Government
interests in compelling incriminating testimony, 406 U.S. at
406 U. S.
443-444,
406 U. S.
446-447, and in leaving open the possibility of
prosecuting the witness on the basis of "evidence from legitimate
independent sources,"
id. at
406 U. S. 461.
In this case, however, neither Congress nor the United States
Attorney has made a similar expression of Government interest.
[
Footnote 2/3] The only public
interest that would be served by forcing respondent to testify
would be that of obtaining testimony
Page 459 U. S. 270
relevant to a private antitrust suit. [
Footnote 2/4] Even that interest would not be
substantially served. [
Footnote
2/5]
If he were compelled to answer petitioners' deposition
questions, Conboy would face a realistic risk that his testimony
would lead to further incriminating evidence that he would be
unable to exclude at a subsequent criminal prosecution. The
interests underlying the use immunity statute have no application
here, and, in my view, the general interest in obtaining testimony
cannot be considered an adequate substitute for those interests. I
therefore join the Court in concluding that the Fifth Amendment
does not permit a trial judge in a civil case to compel
incriminating testimony solely upon a finding that the testimony
would be "directly or
Page 459 U. S. 271
indirectly derived from" the witness' previously immunized
testimony.
[
Footnote 2/1]
A witness is generally entitled to invoke the Fifth Amendment
privilege against self-incrimination whenever there is a realistic
possibility that his answer to a question can be used in any way to
convict him of a crime. It need not be probable that a criminal
prosecution will be brought, or that the witness' answer will be
introduced in a later prosecution; the witness need only show a
realistic possibility that his answer will be used against him.
Moreover, the Fifth Amendment forbids not only the compulsion of
testimony that would itself be admissible in a criminal
prosecution, but also the compulsion of testimony, whether or not
itself admissible, that may aid in the development of other
incriminating evidence that can be used at trial.
See Hoffman
v. United States, 341 U. S. 479,
341 U. S. 486
(1951).
The privilege is inapplicable only "if the testimony sought
cannot possibly be used as a basis for, or in aid of, a criminal
prosecution against the witness."
Brown v. Walker,
161 U. S. 591,
161 U. S. 597
(1896). It has long been recognized that the court may require a
witness to give testimony, including testimony that admits to
involvement in a criminal act, when there is no possibility of
future criminal charges being brought against the witness. For
example, a witness may be compelled to testify concerning his
involvement in a crime when he is protected from later prosecution
by the Double Jeopardy Clause,
see, e.g., Reina v. United
States, 364 U. S. 507,
364 U. S. 513
(1960) (dictum), by the applicable statute of limitations,
see,
e.g., United States v. Goodman, 289 F.2d 256, 259 (CA4 1961),
or by a pardon,
see Brown v. Walker, supra, at
161 U. S.
599-600. As JUSTICE BRENNAN indicated in his dissenting
opinion in
Piccirillo v. New York, 400 U.
S. 548,
400 U. S.
564-565 (1971) (dissenting from dismissal of
certiorari), this limitation upon the privilege against
self-incrimination is derived from the language of the Fifth
Amendment:
"Implicitly, of course, 'in any criminal case' suggests a
limitation upon the reach of the privilege. . . . [I]f there is no
possibility of a criminal case, then the privilege would not apply.
And that is precisely the basis on which this Court has
consistently upheld grants of immunity from
Brown v.
Walker, 161 U. S. 591 (1896), to
Ullman v. United States, 350 U. S. 422 (1956)."
It has also been recognized that a court may compel a witness to
testify when his answers could neither implicate him in any
criminal conduct nor possibly lead to the discovery of past
criminal conduct.
See Hoffman v. United States, supra; Heike v.
United States, 227 U. S. 131,
227 U. S.
142-145 (1913). This limitation, too, is implicit in the
language of the constitutional guarantee, since a witness who has
been forced to provide testimony that cannot incriminate him has
not in any meaningful sense been "compelled in any criminal case to
be a witness against himself."
In this case, the Fifth Amendment privilege is fully applicable.
Respondent remains subject to criminal prosecution, and his answers
to the deposition questions asked by petitioners' attorneys would
both implicate him in criminal conduct and tend to lead to further
incriminating information.
[
Footnote 2/2]
The questioning at the deposition went well beyond mere
ratification of the accuracy of the grand jury transcript. Conboy
was also called upon to answer again the identical questions asked
before the grand jury. While it may be true that petitioners
expected Conboy "only to ratify or confirm facts that were already
known,"
post at
459 U. S. 295
(STEVENS, J., dissenting), there was no assurance in this case that
Conboy's answers, based upon his current recollection of events,
would not provide details that were absent from his prior grand
jury testimony.
[
Footnote 2/3]
As the Court observes, the Government interests that supported
the compulsion of incriminating testimony in
Kastigar
would be undermined by the compulsion of respondent's testimony in
this case. The Government interest in preserving the chance to
prosecute respondent in the future based on "legitimate
independent" evidence would be compromised by the creation of
additional immunized testimony.
Ante at
459 U. S.
260-261.
[
Footnote 2/4]
Even if the United States Attorney consented to the trial
judge's compulsion of respondent's answers, the judge's action
might be improper. As the Court notes, it is an open question
whether the Government has statutory authority "to immunize the
testimony of a witness in a
civil proceeding when the
Government determines that the public interest would be served."
Ante at
459 U. S. 261,
n. 20 (emphasis added). Moreover, the constitutionality of such a
statutory authorization remains open to doubt.
Cf. Garrity v.
New Jersey, 385 U. S. 493,
385 U. S. 496
(1967) (declining to consider constitutionality of
forfeiture-of-office statute which, in effect, allowed the
authorities to compel a public officer, under threat of removal
from office, to provide incriminating testimony in exchange for
immunity from use or derivative use of that testimony at a criminal
proceeding).
Indeed, this Court has not yet spoken as to the circumstances
under which a trial court in a
criminal case may compel a
defense witness to testify concerning questions as to which he had
previously testified before the grand jury or may compel the
Government to secure such a witness' testimony by granting him
immunity.
Cf. United States v. Praetorius, 622 F.2d 1054,
1064 (CA2 1980);
United States v. Morrison, 535 F.2d 223,
229 (CA3 1976);
United States v. Alessio, 528 F.2d 1079
(CA9 1976);
Earl v. United States, 124 U.S.App.D.C. 77,
80, n. 1, 361 F.2d 531, 534, n. 1 (1966) (Burger, J.).
[
Footnote 2/5]
It is questionable whether the deposition testimony would be
admissible at trial, in light of the limits that might have to be
placed on cross-examination by the other civil litigants.
Ante at
459 U. S.
259-260. Nor would respondent's answers help petitioners
obtain further relevant information, since petitioners already have
access to respondent's grand jury testimony.
JUSTICE BRENNAN, concurring in the judgment.
The Court today holds that
"a deponent's civil deposition testimony, closely tracking his
prior immunized testimony, is not, without duly authorized
assurance of immunity at the time, immunized testimony within the
meaning of § 6002, and therefore may not be compelled over a valid
assertion of his Fifth Amendment privilege."
Ante at
459 U. S.
263-264 (footnote omitted). JUSTICE BLACKMUN's opinion
concurring in the judgment likewise states:
"In this case, we are asked to decide whether a witness who has
testified before a federal grand jury pursuant to a grant of use
immunity, 18 U.S.C. §§ 6001-6005, may be forced to testify about
the same events in a subsequent civil deposition, despite his
assertion of his Fifth Amendment privilege against
self-incrimination. I agree with the Court's conclusion that he may
not be forced so to testify."
Post at
459 U. S. 272.
I understand these to be two statements of the same rule,
* and I completely
agree with both of them. For this reason, I concur in the judgment
of the Court.
Page 459 U. S. 272
I am not in entire agreement with everything in the majority
opinion or in JUSTICE BLACKMUN's opinion. My differences with them,
however, are over small matters of approach, and do not go to the
substance of their conclusions. Moreover, this case arises in the
rather specialized legal setting of use immunity statutes, and does
not require any broad-ranging analysis beyond the scope of the
problem here presented. With these considerations in mind, I do not
think it worthwhile to file a lengthy separate opinion setting
forth these differences in detail.
* While the majority's statement of the holding is formally
limited to the situation where a deponent's deposition testimony
"closely track[s] his prior immunized testimony,"
ante at
459 U. S. 263,
I do not take that to be a substantive difference between its
formulation and that of JUSTICE BLACKMUN. As both the majority's
opinion and JUSTICE STEVENS' dissenting opinion,
post, p.
459 U. S. 282,
make clear, the "closely tracking" situation is the strongest
possible case for finding that the deposition testimony is derived
from the prior immunized testimony. Hence, to hold that a deponent
may assert his privilege in this case is necessarily to hold that
he may do so in all cases, as JUSTICE BLACKMUN states
explicitly.
JUSTICE BLACKMUN, concurring in the judgment.
In this case, we are asked to decide whether a witness who has
testified before a federal grand jury pursuant to a grant of use
immunity, 18 U.S.C. §§ 6001-6005, may be forced to testify about
the same events in a subsequent civil deposition, despite his
assertion of his Fifth Amendment privilege against
self-incrimination. I agree with the Court's conclusion that he may
not be forced so to testify. Because I reach this conclusion only
by a different route, I write separately to explain my views.
I
The statute authorizing grants of use immunity, 18 U.S.C. §
6002, provides that a witness may be ordered to testify despite his
claim of a Fifth Amendment privilege, but
"no testimony or other information compelled under the order (or
any information directly or indirectly derived from such testimony
or other information) may be used against the witness in any
criminal case"
(with stated limited exceptions). The Court notes that the
parties in this case "make their arguments in terms tracking those
of the statute -- whether the deposition testimony is
derived
from' the prior testimony." Ante at 459 U. S. 256.
In the Court's view, however, "the crux of their dispute is whether
the earlier grant of immunity itself compelled Conboy to talk."
Ibid. It seems to me that by characterizing the issue in
this way, the Court
Page 459 U. S. 273
begs the question now before us. The earlier grant of immunity,
by itself, obviously does not compel Conboy to testify at a later
deposition. It is the District Court that has sought to compel
Conboy's testimony. Whether that court may do so is certainly the
ultimate issue the Court must decide. But the Court's rephrasing
does not bring us closer to the answer.
It is, of course, black-letter law that a witness cannot assert
a Fifth Amendment privilege not to testify "if the testimony sought
cannot possibly be used as a basis for, or in aid of, a criminal
prosecution against the witness."
Brown v. Walker,
161 U. S. 591,
161 U. S. 597
(1896);
see Mason v. United States, 244 U.
S. 362,
244 U. S.
365-366 (1917). In this case, however, the Court
concludes that Conboy has a valid Fifth Amendment privilege
"irrespective of whether . . . his [deposition] answers could have
been admitted against him at a criminal trial."
Ante at
459 U. S. 257,
n. 13. The Court never explains the basis for this conclusion, and
it seems to me that it is plainly wrong. If Conboy's deposition
testimony cannot be used against him in a subsequent criminal
prosecution, he cannot assert a Fifth Amendment privilege at his
deposition, and the District Court may compel him to testify. We
must turn to § 6002 to determine whether the testimony can be so
used. Section 6002 informs us that, when immunity has been granted,
the witness is protected against use of "information directly or
indirectly derived from [the immunized] testimony." Whether
Conboy's deposition testimony is so derived is the real issue
before the Court.
The Court finds this statutory language irrelevant to its
analysis. The Court asserts that petitioners have a "need for
admissible evidence," the Government has an "interest in limiting
the scope of an immunity grant," and respondent Conboy has an
"interest . . . that [his Fifth Amendment] protection be certain."
Ante at
459 U. S. 258,
459 U. S. 257.
The Court then seeks to adjust these interests and arrive at a
solution satisfactory to all. While this may be appropriate as a
means of
Page 459 U. S. 274
setting public policy, [
Footnote
3/1] I cannot agree that it is an appropriate method of
statutory interpretation.
As with every case involving the construction of a statute, "our
starting point must be the language employed by Congress."
Reiter v. Sonotone Corp., 442 U.
S. 330,
442 U. S. 337
(1979). If we were forced to examine the language of § 6002 without
reference to its background and legislative history, the words of
the statute might be sufficiently ambiguous so as to require resort
to the policy concerns addressed by the Court. In this case,
however,
"regard for the specific history of the legislative process that
culminated in the Act now before us affords more solid ground for
giving it appropriate meaning."
United States v. Universal C. I. T. Credit Corp.,
344 U. S. 218,
344 U. S. 222
(1952).
II
A
This Nation's first use immunity statute was passed by Congress
in 1868. It provided that
"no answer or other pleading of any party, and no discovery, or
evidence obtained by means of any judicial proceeding from any
party or witness . . . shall be given in evidence, or in any manner
used against such party or witness . . . in any court of the United
States . . . in respect to any crime."
Act of Feb. 25, 1868, ch. 13, § 1, 15 Stat. 37. In
Counselman v. Hitchcock, 142 U. S. 547
(1892), this Court held that immunity of this type could not be
used to compel a witness to testify against himself, because it did
not provide protection coextensive with the Fifth Amendment. The
Counselman Court reasoned that the statute
Page 459 U. S. 275
"protected [the witness] against the use of his testimony
against him . . . in any criminal proceeding, in a court of the
United States. But it had only that effect. It could not, and would
not, prevent the use of his testimony to search out other testimony
to be used in evidence against him. . . . It could not prevent the
obtaining and the use of witnesses and evidence which should be
attributable directly to the testimony he might give under
compulsion, and on which he might be convicted, when otherwise, and
if he had refused to answer, he could not possibly have been
convicted."
Id. at
142 U. S. 564.
In concluding, the Court stated that
"no statute which leaves the party or witness subject to
prosecution after he answers the criminating question put to him,
can have the effect of supplanting the privilege conferred by the
Constitution of the United States."
Id. at
142 U. S.
585.
Due to this latter statement in the
Counselman opinion,
Congress and the lower courts assumed that only a broad
"transaction" immunity would satisfy the requirements of the Fifth
Amendment. Thus, beginning in 1893, Congress enacted a series of
statutes giving a witness complete immunity from prosecution for
any crime divulged in compelled testimony. This reliance on
transaction immunity continued until 1970, when Congress enacted §
6002 as part of the Organized Crime Control Act of 1970, Pub.L.
91-452, 84 Stat. 927.
In the meantime, however, the Court decided several cases
suggesting that some forms of use immunity would be
constitutionally permissible. In
Murphy v. Waterfront
Comm'n, 378 U. S. 52
(1964), the Court held that a state witness could not be compelled
to give testimony that could be incriminating under federal law
"unless the compelled testimony and its fruits cannot be used in
any manner by federal officials in connection with a criminal
prosecution against him."
Id. at
378 U. S. 79. In
a footnote, the Court added that, once a defendant had been
immunized in a state proceeding,
"the federal authorities
Page 459 U. S. 276
have the burden of showing that their evidence is not tainted by
establishing that they had an independent, legitimate source for
the disputed evidence."
Id. at
378 U. S. 79, n.
18. Several years later, in
Gardner v. Broderick,
392 U. S. 273,
392 U. S. 276
(1968), the Court stated that
"[a]nswers may be compelled regardless of the [Fifth Amendment]
privilege if there is immunity from federal and state use of the
compelled testimony or its fruits in connection with a criminal
prosecution against the person testifying."
And shortly thereafter, in
People v. La Bello, 24
N.Y.2d 598, 602, 249 N.E.2d 412, 414 (1969), the New York Court of
Appeals interpreted
Murphy and
Gardner to hold
that
Counselman did not bar use immunity statutes, so long
as they protected the immunized witness "from the use of his
testimony or the fruits thereof."
B
It was in this context that Congress, in 1969, began considering
a new type of immunity statute. The House and Senate Reports
accompanying the Organized Crime Control Act of 1970 make clear
that Congress was persuaded by the reasoning of these cases. After
quoting from
La Bello and discussing
Counselman
and
Murphy at length,
see S.Rep. No. 91-617, pp.
52-55 (1969); H.R.Rep. No. 91-1188, pp. 8-11 (1970), the Reports
state that the statutory immunity provided by § 6002
"is intended to be as broad as, but no broader than, the
privilege against self-incrimination. . . . It is designed to
reflect the use-restriction immunity concept of
Murphy, .
. . rather [than] the transaction immunity concept of
Counselman."
S.Rep. No. 91-617, at 145; H.R.Rep. No. 91-1188, at 12;
see H.R.Rep. No. 91-1549, p. 42 (1970).
Section 6002's prohibition against the use of compelled
testimony or "any information directly or indirectly derived from
such testimony" reflected Congress' view of the extent of the Fifth
Amendment privilege. According to the House and Senate Reports, the
phrase was chosen to conform to "present law" on "the use of
evidence derivatively obtained."
Page 459 U. S. 277
The Reports then cite
Wong Sun v. United States,
371 U. S. 471
(1963), the seminal case on what is commonly known as the "fruits"
doctrine, as representing "present law."
See S.Rep. No.
91-617, at 145; H.R.Rep. No. 91-1188, at 12; H.R.Rep. No. 91-1549,
at 42. In
Murphy and
Gardner, upon which Congress
relied, the Court had used the term "fruits" to describe the
constitutional limits on use immunity. References to the "fruits"
doctrine are scattered throughout the legislative history, whenever
the boundaries of the use immunity statute are discussed. [
Footnote 3/2] In
Kastigar v. United
States, 406 U. S. 441,
406 U. S. 461
(1972), we recognized that the immunity § 6002 provides is
"analogous to the Fifth Amendment requirement in cases of coerced
confessions." We noted that § 6002 was modeled on a recommendation
from the National Commission on Reform of Federal Criminal Laws,
and we quoted with approval a Commission report stating:
"'The proposed immunity is . . . of the same scope as that
frequently, even though unintentionally, conferred as the result of
constitutional violations by law enforcement officers.'"
Id. at
406 U. S. 452,
n. 36 (quoting Second Interim Report of the National Commission on
Reform of Federal Criminal Laws, Mar. 17, 1969, Working Papers of
the Commission 1446 (1970)).
In light of this evidence of legislative intent, the phrase
"directly or indirectly derived from" in § 6002 cannot be
regarded
Page 459 U. S. 278
as ambiguous or lacking in meaning. It seems to me that Congress
made its intent clear. First, it intended to grant only the minimum
protection required by the Constitution. Second, it believed that
the protection constitutionally required in cases of compelled
testimony was identical to the protection required in cases of
coerced statements or evidence otherwise illegally obtained.
Respondent Conboy's interpretation of § 6002 is obviously
narrower than that offered by petitioners; deposition testimony
involving the same subject matter as prior immunized testimony
would be protected by the prior grant of use immunity under
petitioners' interpretation, but not under Conboy's. Because
Congress intended grants of use immunity to be as narrow as
possible, we must accept Conboy's interpretation if it is
consistent with the Constitution. The question before us, then, is
whether a witness' Fifth Amendment rights would be violated if
testimony given at a subsequent deposition were not covered by his
grant of use immunity.
When an incriminating statement has been obtained through
coercion, the Fifth Amendment prohibits use of the statement or its
"fruits." Congress understood this when it enacted § 6002, and, as
the legislative history demonstrates, Congress intended to
incorporate the "fruits" doctrine into the statute by use of the
phrase "directly or indirectly derived." In order to ascertain
whether respondent Conboy's deposition testimony would be "directly
or indirectly derived" from his immunized grand jury testimony, and
consequently whether Conboy's interpretation of the statute is
constitutional, we must determine whether the deposition testimony
would be "fruits" as that concept is understood in the context of
the Fourth and Fifth Amendments. [
Footnote 3/3]
Page 459 U. S. 279
III
In
Wong Sun v. United States, supra, the Court held
that a statement following an illegal arrest must be suppressed as
"fruits" of the arrest unless it results from "an intervening
independent act of a free will," and is "sufficiently an act of
free will to purge the primary taint of the unlawful invasion." 371
U.S. at
371 U. S. 486.
In
Harrison v. United States, 392 U.
S. 219,
392 U. S.
222-224 (1968), the Court applied a similar standard to
statements following an illegally obtained confession. Our more
recent cases have adhered to this test.
See, e.g., Rawlings v.
Kentucky, 448 U. S. 98,
448 U. S.
107-110 (1980);
Brown v. Illinois, 422 U.
S. 590,
422 U. S.
600-604 (1975). In determining whether this standard is
met, we examine a range of factors including the speaker's
knowledge of his Fifth Amendment rights; the temporal proximity of
the constitutional violation and the subsequent statement; the
nature of the violation and of the Government's involvement; and,
of course, the voluntariness of the statement.
See id. at
422 U. S.
603-604. In brief, the issue is whether the speaker has
voluntarily chosen to make the later statement, uninfluenced by the
fact that prior statements have been compelled. [
Footnote 3/4]
I find little difficulty in concluding that, if a witness in
Conboy's position were to testify during his civil deposition, his
statements would not be "fruits" of his previous immunized
testimony. [
Footnote 3/5] In this
case, Conboy attended his deposition
Page 459 U. S. 280
accompanied by a lawyer. He was obviously aware of his Fifth
Amendment rights, and he asserted them with vigor. There is no
suggestion that Conboy was under a misapprehension about the
relationship between his immunized testimony and his civil
deposition. The deposition took place long after the conclusion of
the immunized testimony, and Conboy did not remain under the
impression that his testimony was being compelled by the Justice
Department. From his past experience before the grand jury, Conboy
knew that each time the Justice Department required his testimony,
it provided a fresh grant of use immunity. Government attorneys
were not involved in this civil case, and no fresh grant of
immunity had been obtained. Under the circumstances, there was no
danger that Conboy would inadvertently incriminate himself under
some lingering compulsion of the prosecuting authorities. Any
statement he made would have been an independent act of free will.
Consequently, had Conboy answered the deposition questions, his
testimony would not have been protected by the original immunity
grant, because it would not have been directly or indirectly
derived from his immunized testimony.
In my view, a prior grant of use immunity could never justify
compelling a witness' testimony over a claim of Fifth Amendment
privilege at a subsequent civil deposition. Although not every
witness will be as well informed as Conboy, any witness who asserts
the privilege necessarily engages in an independent act of free
will. The assertion of the privilege should signal the judge
supervising the civil proceedings that the testimony may well not
be "derived from" the immunity grant. [
Footnote 3/6] Although the compelled testimony would be
in
Page 459 U. S. 281
admissible at a subsequent criminal trial, [
Footnote 3/7] I agree with the Court that a witness
should not be forced to rely upon the uncertainties of a later
motion to suppress. This would indeed "
"let the cat out" with
no assurance whatever of putting it back.'" Ante at
459 U. S. 262
(quoting Maness v. Meyers, 419 U.
S. 449, 419 U. S. 463
(1975)).
I do not mean to suggest, however, that, whenever a witness
immunized in prior proceedings testifies at a civil deposition
without asserting a Fifth Amendment privilege, his testimony
automatically should be admissible against him in a subsequent
criminal prosecution. If there is a subsequent prosecution and the
Government seeks to introduce deposition testimony of this sort,
the judge in the criminal case should determine whether, under the
circumstances, the deposition testimony is inadmissible as "derived
from" the prior immunized statements. If the witness reasonably
believed that his prior grant of immunity protected his testimony,
the testimony might well be derived from the immunity grant under
the standards I have set forth above. If, on the other hand, the
deposition testimony was a truly independent act of free will, it
would be admissible in any later prosecution.
Page 459 U. S. 282
[
Footnote 3/1]
As JUSTICE STEVENS' dissent demonstrates, the interests of the
Government and the parties are not at all as clear as the Court
asserts. Reliance on these interests is particularly inappropriate
in a case such as this one, where the Government is not a party and
we can only speculate about which interpretation of the statute
would best serve the Government's interest in law enforcement.
[
Footnote 3/2]
See, e.g., S.Rep. No. 91-617, p. 108 (1969) (§ 6002 "is
a restriction against use of incriminating disclosures or their
fruits"); Hearings on S. 30
et al. before the Subcommittee
on Criminal Laws and Procedures of the Senate Committee on the
Judiciary, 91st Cong., 1st Sess., 216 (1969) (report of New York
County Lawyers' Association) (under § 6002, the "testimony so
compelled or its fruits may not be used against the witness");
id. at 281 (statement of Rep. Poff) (rule of § 6002 is
"similar to the exclusionary rule which is now applied to evidence
assembled in violation of various constitutional rights");
id. at 506 (statement of Sen. McClellan) (use immunity
statutes can be made constitutional "through the use of the fruit
of the poisonous tree process of derivative suppression, an analogy
borrowed from fourth amendment illegally obtained evidence
cases").
[
Footnote 3/3]
The considerations underlying the Fifth Amendment "fruits"
doctrine are not necessarily the same as those relevant in the
Fourth Amendment context. With respect to the issue before us,
however, Fourth Amendment "fruits" cases provide us with guidance
in determining whether a witness' deposition testimony is "derived
from" prior immunized testimony within the meaning of § 6002.
[
Footnote 3/4]
In
Kastigar v. United States, 406 U.
S. 441,
406 U. S. 459
(1972), we recognized that Congress intended § 6002 to provide the
minimum protection required by the Constitution.
Wong Sun
and its progeny establish that the "fruits" doctrine provides all
the protection the Constitution requires. Thus, although my
analysis is framed in terms of constitutional standards, the issue
here of what the Constitution requires is not different from the
issue of what Congress intended.
[
Footnote 3/5]
My analysis is necessarily limited to the choices facing a
witness prior to the threat of contempt by the district court. The
witness cannot be held in contempt unless the testimony sought is
protected by the grant of use immunity or, in other words, unless
it would be "fruits." The question
whether the testimony
would be "fruits" thus cannot turn on whether the district court
has issued a contempt order.
[
Footnote 3/6]
I agree with JUSTICE STEVENS that the existence of a witness'
Fifth Amendment privilege does not depend on his decision to assert
the privilege.
See post at
459 U. S. 287,
n. 7. Nevertheless, the state of mind of the witness is relevant to
a "fruits" inquiry, because a witness' statements are "fruits" only
if they do not result from an independent act of free will.
Cf.
Harrison v. United States, 392 U. S. 219,
392 U. S.
222-224 (1968). A witness' assertion of the privilege is
strong evidence of that state of mind; the witness has demonstrated
that he feels free to decide whether or not to speak.
[
Footnote 3/7]
It seems to me beyond question that deposition testimony
compelled by means of a contempt order, over the assertion of a
Fifth Amendment privilege, would be inadmissible at a subsequent
criminal trial whether or not it was later held to be within the
scope of the original grant of immunity. If the testimony was
within the grant of immunity (
i.e., if it was "fruits"),
it would be inadmissible under § 6002. If the testimony was not
within the grant of immunity, the witness should have been
permitted to assert his privilege, and the testimony wrongfully
compelled should be excluded.
See Maness v. Meyers,
419 U. S. 449,
419 U. S. 474
(1975) (WHITE, J., concurring in result).
JUSTICE STEVENS, with whom JUSTICE O'CONNOR joins,
dissenting.
A witness in a judicial proceeding has a duty to answer proper
questions. The witness cannot, however, be compelled to incriminate
himself. If a witness believes a truthful response to a question
could be used against him in a subsequent criminal proceeding, or
might lead to the discovery of incriminating evidence, he may
assert his constitutional right to remain silent. When such an
assertion is made, a judge must evaluate the asserted risk. If it
clearly appears that the answer could not be used against the
witness in a subsequent criminal proceeding and could not provide a
prosecutor with any information that he does not already have, the
witness must speak. This case concerns a witness' refusal to give
answers that could not incriminate him.
The Court today holds that the existence of a valid Fifth
Amendment privilege does not depend on whether a truthful answer
would be incriminating. The Court does not dispute the fact that
neither the respondent's answers during the deposition in this
case, nor any information discovered on the basis of those answers,
could be used against him in a subsequent criminal proceeding.
Ante at
459 U. S. 257,
n. 13. Nevertheless, the Court holds that the Fifth Amendment
empowers the respondent to refuse to testify. The opinion of the
Court stresses two interests: "the Government's need for admissible
evidence" in a future effort to prosecute the respondent, and "the
individual's interest in avoiding self-incrimination."
Ante at
459 U. S. 256.
It holds that potential threats to those interests create a Fifth
Amendment privilege in this case.
I am frankly puzzled by this analysis. The Government's supposed
desire to introduce evidence in a future proceeding should be
irrelevant if the Government has
already forsworn the
right to introduce that evidence by a prior grant of immunity. And,
as far as the deponent's interest in avoiding self-incrimination is
concerned, "he should be indifferent between the protection
afforded by silence and that afforded by immunity,"
Page 459 U. S. 283
ante at
459 U. S. 257.
Thus, whether analyzed from the point of view of the prosecutor or
the witness, the same question must be answered: whether the
statutory immunity that has already attached to respondent's grand
jury testimony precludes the Government, or any other prosecutor,
from using the respondent's deposition answers against him in any
criminal case. That question requires an analysis not of whether
the deposition answers are "immunized
testimony,'"
ante at 459 U. S. 250,
but rather of whether the answers would be "directly or indirectly
derived from [his grand jury] testimony" within the meaning of the
use immunity statute. Because I think it clear that they would be
so derived, I respectfully dissent.
I
Respondent has been a witness in two separate proceedings. In
January, 1978, he was subpoenaed to testify before a federal grand
jury investigating a violation of the Sherman Act. Because he was a
participant in the price-fixing arrangements under review, he
asserted his constitutional privilege against being compelled to be
a witness against himself. [
Footnote
4/1] The prosecutor then invoked his authority under the
Organized Crime Control Act of 1970, [
Footnote 4/2] and a federal judge ordered the respondent
to testify in exchange for a grant of immunity.
In May, 1981, respondent was subpoenaed to appear in a second
proceeding. [
Footnote 4/3] At that
deposition proceeding, respondent
Page 459 U. S. 284
was asked the same questions that he had been asked before the
grand jury. Everyone agrees that the questions were derived from
the transcript of his grand jury testimony, and no one disputes the
fact that truthful answers to those questions would merely have
confirmed information that was already recorded in the grand jury
transcript. [
Footnote 4/4] It is
therefore logical to inquire, as the court below did, whether
ratification of the prior immunized testimony would subject the
respondent to a new risk of prosecution.
The plain language of the Organized Crime Control Act protects
the witness from that risk. The law provides:
"[N]o testimony or other information compelled under the order
(or any information directly or indirectly derived from such
testimony or other information) may be used against the
witness in any criminal case. . . ."
18 U.S.C. § 6002 (emphasis added). When a witness appears at a
second proceeding and is asked whether the information that he was
previously compelled to disclose to the grand jury was true, his
responses are quite plainly "information directly or indirectly
derived from such testimony." This seems particularly obvious when
the interrogator's
Page 459 U. S. 285
only basis for his questions is the transcript of the grand jury
proceeding.
This natural construction of the statute was endorsed by the
Government immediately after the Organized Crime Control Act took
effect. In a memorandum explaining the statute to United States
Attorneys, the Assistant Attorney General in charge of the Criminal
Division explained that it allowed an immunized witness to be
prosecuted "if it can be clearly established that independent
evidence, standing alone, is in fact the sole basis of the
contemplated prosecution." Dept. of Justice Memo No. 595, Supp. 1,
Sept. 2, 1971, p. 5. He emphasized that,
"[a]lthough the government may prosecute the witness on the
basis of similar evidence obtained independently of the witness's
testimony in a rare case where such an independent source develops,
as a practical matter, it will be difficult for the government to
prove an independent derivation, especially if the information
first was divulged in the witness's testimony."
Id. at 5, n. 4 (emphasis in original). And when the
Solicitor General of the United States later appeared before this
Court to defend the Act's constitutionality, he based his argument
in part on the proposition that the words "directly or indirectly
derived" were intended to create an "extended use immunity," and
should be construed broadly. [
Footnote
4/5]
Page 459 U. S. 286
This Court accepted the Solicitor General's argument. It upheld
the use immunity statute after construing it to provide protection
commensurate with the protection resulting from the invocation of
the privilege itself. [
Footnote
4/6]
"The statute provides a sweeping prohibition of any use, direct
or indirect, of the compelled testimony and any information derived
therefrom. . . ."
* * * *
"[The] burden of proof, which we reaffirm as appropriate, is not
limited to a negation of taint; rather, it imposes on the
prosecution the affirmative duty to prove that the evidence it
proposes to use is derived from a
legitimate source wholly
independent of the compelled testimony."
Kastigar v. United States, 406 U.
S. 441,
406 U. S. 460
(emphasis added).
Page 459 U. S. 287
We held that evidence may be used in a subsequent prosecution
only if the Government successfully demonstrates that it would have
obtained that evidence even if the witness had never testified
before the grand jury.
See id. at
406 U. S.
458-459;
Murphy v. Waterfront Comm'n,
378 U. S. 52,
378 U. S.
79.
The questions that were propounded to the respondent at his
deposition in this case called for answers that were presumptively
within the scope of the statutory immunity. That presumption would
protect him from the use in a subsequent criminal prosecution of
any of the information contained in his answers unless it could be
shown that the information would have been obtained even if the
witness had never testified before the grand jury. Nothing in this
record suggests that answers to questions based entirely on the
grand jury transcript were not "fruits" of the prior testimony.
[
Footnote 4/7]
The District Judge properly ruled that the respondent's answers
could not have been introduced against him at a subsequent criminal
prosecution any more than the original testimony could have been.
Moreover, if the respondent's answers would be a necessary link in
a chain that led to other information, then that information would
also be "derived" from the prior testimony, and likewise could not
be used at a subsequent criminal prosecution. The witness therefore
had no greater right to assert a constitutional privilege
against
Page 459 U. S. 288
self-incrimination in the second proceeding than he had in the
grand jury proceeding itself.
II
Although the Court does not dispute the fact that respondent's
answers were within the scope of the immunity grant,
ante
at
459 U. S. 257,
n. 13, it nevertheless places a great deal of reliance on "the
Government's interest in limiting the scope of an immunity grant,"
ante at
459 U. S. 258.
In my judgment, the Court commits a triple error in this analysis.
First, it uses policy judgments that could at most affect an
interpretation of the use immunity statute in other cases to
justify its erroneous interpretation of the Fifth Amendment in this
case. Second, it misunderstands the prosecutorial interest in how
the statute should be interpreted in those other cases. And third,
it overlooks the obvious enforcement costs of its holding in this
case. The first error does not need elaboration; the second two
do.
A federal prosecutor does not offer immunity to a suspected
criminal unless he expects to obtain important testimony that would
not otherwise be available. The prosecutor realizes that, in almost
all cases, an offer of immunity -- even of use immunity -- means
sacrificing the chance to prosecute the witness for his own role in
the criminal enterprise. [
Footnote
4/8] The
Page 459 U. S. 289
question is what kind of return society will get on the
prosecutor's investment in immunity. Once the prosecutor pays the
immunity price, he will normally wish to probe deeply for evidence
that will implicate the witness' criminal associates as thoroughly
as possible. The primary law enforcement interest is to maximize
the amount of information that the witness provides. A broad
construction of the immunity grant serves that purpose; a narrow
construction can only motivate witnesses to be as unresponsive as
possible. [
Footnote 4/9]
Yet the Court suggests that the Government prosecutors take a
different attitude towards immunized witnesses. Even though the
Government itself has not promoted such a view
Page 459 U. S. 290
in the deposition proceedings in this case or by argument in
this Court, [
Footnote 4/10] the
opinion of the Court suggests that, when a prosecutor immunizes a
witness in order to obtain particular information, he harbors an
intent to indict the witness afterwards, and would therefore prefer
that the witness remain in the same peril of prosecution as before
being immunized. [
Footnote 4/11]
Yet it defies human nature to presume that the witness would be
just as cooperative during a 24-hour truce, knowing that
hostilities will resume immediately thereafter, as he would be
after signing a peace treaty.
Nor does the Court explain its assertion that applying the
statute as it is written and as it was construed in
Kastigar "in effect could invest the deponent with
transactional immunity."
Ante at
459 U. S. 260.
Transactional immunity is not at all the issue here. Transactional
immunity would require the prosecutor to forfeit an open-and-shut
case that he had already built
independently. Use
immunity, as explained in
Kastigar
Page 459 U. S. 291
and as granted to the respondent, allows the prosecutor to
retain that case. [
Footnote 4/12]
I have found absolutely no evidence, and the Court cites none
today, to support the implicit suggestion that Congress substituted
"use immunity" for "transactional immunity" in order to allow
prosecutors to take advantage of subsequent repetitions of
immunized testimony. [
Footnote
4/13]
The Court's reference to "transactional immunity" suggests a
fear that ordering the respondent to answer a deposition question
may somehow jeopardize legitimate efforts to prosecute him.
Consideration of the facts of this particular case demonstrates
that the Court's apparent fear is baseless. Unless some prosecutor
already has an independent basis for prosecuting the respondent --
and nothing in the record suggests that any such independent basis
exists -- the Government has already agreed that he will not be
prosecuted for engaging in illegal price discussions with Fred
Renshaw and Dick Herman of the Alton Box Board. If, at the
deposition, he is required to confirm that such discussions took
place,
Page 459 U. S. 292
how can that confirmation affect his criminal liability? If some
prosecutor has a demonstrably independent basis for proving the
respondent's participation in the discussions, his confirmation
will not make that basis any less demonstrably independent.
[
Footnote 4/14] And if that
prosecutor has an independent basis for showing that the respondent
participated in the discussions, that basis will be no less
demonstrably independent if the respondent is required to identify
the time, place, and other persons who participated in the
discussions.
Furthermore, one should not overlook the societal costs -- law
enforcement costs -- of the Court's expansion of the Fifth
Amendment. The public interest in obtaining the full and candid
testimony of a witness with knowledge of the inner workings of a
price-fixing conspiracy is both real and significant. [
Footnote 4/15] Conceivably, a relatively
brief account of the basic structure of the conspiracy might have
been sufficient to persuade the grand jury to indict other parties
and also to persuade those defendants to plead guilty or to enter
into some other settlement with the Government. [
Footnote 4/16] Even if a grand jury transcript is
confined to a brief description of a price-fixing
Page 459 U. S. 293
arrangement, for example, the public interest may well be served
by allowing private parties who have been injured thereby to
inquire into the details of the arrangement. [
Footnote 4/17]
The Court assumes that the scope of the Fifth Amendment
privilege in this case should be expanded in order to serve
society's law enforcement interests. I do not accept this mode of
Fifth Amendment interpretation. But even if I did, I would find the
theoretical risk that compelled testimony could hamper a potential
prosecution to be plainly outweighed by the enforcement interest in
allowing the deposition to go forward. And, significantly, even the
slight theoretical risk that concerns the Court is not presented by
this case, in which no new incriminating information is
called for by the deposition questions.
III
The Court makes the curious argument that the Fifth Amendment
privilege must extend to testimony that could not incriminate a
witness, because otherwise the witness will be put to the risk of
"predicting" whether a court in a later criminal proceeding would
agree that the testimony was
Page 459 U. S. 294
within the scope of the immunity.
Ante at
459 U. S.
261-262. I do not agree that the "risk" that troubles
the Court is entitled to protection under the Fifth Amendment.
A witness in the respondent's chair at a deposition can do one
of two things: he can answer or he can assert a Fifth Amendment
privilege. If he answers, he is obviously more "at risk" under
JUSTICE BLACKMUN's narrow view of the use immunity statute than
under the broad one adopted in
Kastigar. For that reason,
the Court does not dispute the fact that, if the respondent had
answered the deposition questions in this case, his answers could
not be used against him. [
Footnote
4/18] The Court and I part company, however, in reacting to the
risks that the witness faces if he asserts a Fifth Amendment
privilege.
If the court supervising the deposition concludes that an answer
is not "directly or indirectly derived" from prior immunized
testimony, it must uphold the assertion of the Fifth Amendment
privilege under both my analysis and the Court's. If, on the other
hand, the supervising court concludes that the answer is "directly
or indirectly derived" from immunized testimony, I believe it must
reject the asserted privilege. The Court disagrees, for two
analytically distinct reasons.
First, the Court suggests that the supervising court might make
a mistake in deciding whether the testimony is directly or
indirectly derived. It suggests that, in this case, Judge Singleton
might not have been able to
"predetermine the decision of the court in a subsequent criminal
prosecution on the
Page 459 U. S. 295
question whether the Government has met its burden of proving
that 'the evidence it proposes to use is derived from a legitimate
source wholly independent of the compelled testimony.'"
Ante at
459 U. S. 261.
The Court does not explain what sort of evidence the prosecutor
might subsequently be able to produce that would show the answers
to be "wholly independent"; indeed, it is difficult to conceive how
such evidence could possibly exist in this case. More importantly,
the Court does not explain why the risk of error in this situation
is different from the identical risk that exists whenever a
privilege is asserted. The Court's argument would require every
trial judge always to honor a claim of privilege, no matter how
obvious it may be that the claim lacks merit, to guard against
being found wrong later. [
Footnote
4/19]
Second, the Court suggests, with JUSTICE MARSHALL, that it would
be unfair to require the witness to answer because "
[f]urther
incriminating evidence that is derived from compelled testimony
cannot always be traced back to its source.'" Ante at
459 U. S. 262,
n. 22, quoting ante at 459 U. S. 268.
Yet such an argument applies with equal force to the entire concept
of use immunity. Our holding in Kastigar rests squarely on
the proposition that one may not assert a Fifth Amendment privilege
on the basis of the risk that evidence might not be traced back to
its source. Cf. Kastigar, 406 U.S. at 406 U. S.
468-471 (MARSHALL, J., dissenting). Even if the Court
were now prepared to retreat from that proposition, this case is
surely not the proper vehicle. The respondent here was asked only
to ratify or confirm facts that were already known. On this record,
it clearly appears that the
Page 459 U. S. 296
answers to the specific questions asked could not possibly
provide any basis for prosecution, or even for investigation,
beyond what was already provided by the grand jury testimony.
[
Footnote 4/20]
In summary, it is perfectly clear on this record that the
respondent's deposition testimony (a) would be protected by the
statutory immunity; (b) could not be used against respondent in a
subsequent criminal proceeding; and (c) could not provide a
prosecutor with any information he does not already have. A concern
that a court might not decide some other case correctly cannot
justify an incorrect disposition of the case before us.
I respectfully dissent.
[
Footnote 4/1]
The Fifth Amendment provides:
"No person . . . shall be compelled in any criminal case to be a
witness against himself. . . ."
[
Footnote 4/2]
See 18 U.S.C. §§ 6002, 6003, quoted by the Court,
ante at
459 U. S.
253-254, nn. 9 and 10.
[
Footnote 4/3]
This second proceeding happens to have been a pretrial
deposition in a civil case, but the issue before us would be no
different if the second proceeding had been a criminal trial of
respondent's coconspirators, or a coroner's inquest. Respondent
happens to have been represented by able counsel at the second
proceeding, but again the scope of his immunity would be no
different if he had not had a lawyer and had simply answered the
questions that were propounded. Moreover, the fact that respondent
asserted his privilege against self-incrimination has nothing to do
with the availability of the privilege -- a matter which is
dependent entirely on whether the content of a truthful answer to
the questions that were propounded could be used against him in a
later criminal trial. His reluctance or willingness to testify
would determine whether he elected to assert his privilege or to
waive it, but has nothing to do with the existence or nonexistence
of the privilege itself.
[
Footnote 4/4]
One insignificant nonincriminating fact would be added. The
grand jury transcript establishes (1) that respondent had price
communications with Fred Renshaw and Dick Herman and (2) that he
remembered those communications at the time of his grand jury
testimony; an answer to the deposition question would establish the
additional fact that respondent still remembers those
communications. That additional fact is not itself incriminating,
and certainly is information indirectly derived from the grand jury
transcript within the meaning of the statute.
[
Footnote 4/5]
In relevant part, the argument reads:
"[MR. GRISWOLD:] . . . As to evidence first discovered after
immunity has been granted, there should be a heavy burden on the
government to show that any such evidence is not the fruit of a
lead or clue resulting from or uncovered by the compelled
testimony. This should not be a conclusive presumption, because
there can be cases where the government can demonstrate that such
evidence was independently derived. It comes in the mail, for
example, the day after the testimony was given, and it had been
postmarked in France a week before."
* * * *
"Q. Well, Mr. Solicitor General, what about the situation . . .
where the government does compel a testimony, and the testimony is
given, and this induces the prosecutor not to use the testimony
except to launch an investigation and by independent means, wholly
unrelated to the testimony except by the fact that it was given,
search out, independently -- "
"MR. GRISWOLD: That is a hard question, but I think if it does
appear that the investigation was the consequence of the evidence
being given, that then the evidence is something which was
indirectly derived as a result of the testimony given."
"Q. Would you -- "
"MR. GRISWOLD: I would construe directly and indirectly quite
broadly, and I would put the burden on the government with respect
to evidence derived after the testimony is given."
"Q. So 'but for,' you put on a 'but for' test in the sense that,
except for the testimony, the government would never have had
it?"
"MR. GRISWOLD: Almost, Mr. Justice. On the other hand, I hate
very much to give conclusions about purely hypothetical cases,
knowing full well the practical situations that can arise which
will make it look differently, but I'm perfectly free to say that I
think there should be a heavy burden on the government to show that
the evidence it wants to use was not directly or indirectly derived
from the testimony."
Tr. of Oral Arg. in
Kastigar v. United States, O.T.
1971, No. 70-117, pp. 30-32.
See also the Solicitor
General's brief in
Kastigar, quoted in nn.
459
U.S. 248fn4/8|>8,
459
U.S. 248fn4/9|>9,
459
U.S. 248fn4/12|>12,
infra.
[
Footnote 4/6]
If the grant were not at least that broad, a witness obviously
could not be compelled to testify before a grand jury.
See
Counselman v. Hitchcock, 142 U. S. 547;
Ullmann v. United States, 350 U.
S. 422,
350 U. S.
436-438.
[
Footnote 4/7]
Cf. Harrison v. United States, 392 U.
S. 219. In his opinion concurring in the judgment,
JUSTICE BLACKMUN seems to assume that the "fruits" inquiry focuses
on the state of mind of the deposition witness, rather than on the
historical derivation of the evidence. He suggests that, if the
witness "elects" to answer a question, his response is not a fruit,
and therefore is not directly or indirectly derived from the prior
testimony. Even under that approach, however, I would think the
question is whether the witness has any choice in the matter. He is
being asked about incriminating testimony that, by hypothesis, he
would prefer not to repeat. Nevertheless, since he is under
subpoena, he must speak unless he has a valid Fifth Amendment
privilege, and neither the Constitution nor the statute vests him
with any power to decide whether he does.
[
Footnote 4/8]
As the Solicitor General assured us in
Kastigar:
"The immunity provision involved in this case was not passed for
the purpose of enabling law enforcement officials to compel
self-incriminating information from witnesses and then prosecute
them for routine matters."
Brief for United States in
Kastigar v. United States,
O.T. 1971, No. 70-117, pp. 32-33.
This fact was emphasized to the Congress that passed the use
immunity provision. The Assistant Attorney General in charge of the
Criminal Division of the Department of Justice testified that,
"[a]s a practical matter, where the witness has elected to
testify under this statute, and he has been used, it would be a
most unusual circumstance for the Government that used him to turn
around and prosecute him."
Hearings on H.R. 11157 and H.R. 12041 before Subcommittee No. 3
of the House Committee on the Judiciary, 91st Cong., 1st Sess., 47
(1969) (statement of Will Wilson).
And a member of the Commission on Reform of the Federal Criminal
Law, testifying in support of the statute, stated:
"I think there is one other thing about this that probably ought
to be pointed out, and that is that, in most instances, a grant of
immunity is going to be made to a willing witness who isn't going
to be prosecuted at all. That is probably the most important aspect
of the whole matter. The prosecution will have just as much of an
interest in protecting the interests of the person who has served
the purposes of law enforcement in that regard as can be. As a
consequence, fears for the person who has willingly cooperated
under the grant of immunity are, I think, probably more fanciful
than real."
Id. at 53-54 (statement of Judge George Edwards).
As of October 1, 1976, these predictions had proved true. On
that date, the Attorney in Charge at the Freedom of Information
Privacy Unit of the Criminal Division of the Department of Justice
wrote a letter to a research scholar. The letter reported that,
while the Immunity Unit did not maintain statistics on the number
of times witnesses had been subsequently prosecuted for matters
disclosed in their immunized testimony, "if any such instances
exist, they are rare." Note, 14 Am.Crim.L.Rev. 275, 282, n. 46
(1976).
[
Footnote 4/9]
The Solicitor General made this point in a slightly different
manner in his
Kastigar brief:
"A practical reason for refraining from subsequent prosecution
of a person who provides information is that the government has a
vital interest in assuring the continued and unimpeded flow of
information concerning criminal activities, and this interest may
be furthered if a witness believes he will not be prosecuted."
Brief for United States in
Kastigar v. United States,
O.T. 1971, No. 70-117, P. 34.
[
Footnote 4/10]
The Solicitor General regularly provides us with briefs
amicus curiae in cases in which the Government's
enforcement interests are implicated. He filed no such brief in
this case, and apparently asserted no objection to petitioners' use
of the grand jury transcript as a basis for questioning of
deposition witnesses, including respondent.
[
Footnote 4/11]
See ante at
459 U. S. 260.
The testimony quoted in
459
U.S. 248fn4/8|>n. 8,
supra, describes this
suggestion as "more fanciful than real." For a view that is more
real than fanciful, see the testimony of the Assistant Attorney
General for the Criminal Division of the Department of Justice in
Hearings on H.R. 11157 and H.R. 12041,
supra, 459
U.S. 248fn4/8|>n. 8, at 41-42 (statement of Will Wilson).
That testimony identified the prototypical situations where use
immunity would be valuable: where the prosecutor wants to induce
someone who is already in prison to testify about a different
conspiracy in exchange for a reduction in the existing sentence;
where a suspect's attorney offers his client's assistance "in
exchange for some type of immunity from that crime which we are
investigating"; where the prosecutor's investigation has focused on
an agent of a principal "and we decide as a matter of policy that
it is more important to prosecute the principal than the agent";
and where a minor actor refuses to testify out of loyalty to a
major actor, as in the case of a bookie's customers --
"[o]bviously, the Government isn't interested in extensive
prosecution of 200 or 300 people who simply placed bets, so you use
the immunity grant there to make the case against the central
person."
[
Footnote 4/12]
As the Solicitor General explained in
Kastigar, there
may be occasions in which an immunized witness is led unexpectedly
(by cross-examination at trial, or by grand juror questions) to
testify about a new crime, "with respect to which the prosecution
may possess overwhelming evidence." Brief for United States in
Kastigar v. United States, O.T. 1971, No. 70-117, p. 36.
Although the Government was willing to give "
absolute immunity'
as to any matter to which the witness testifie[d]" in "a limited
area," the Government should not be made to abandon an independent
case. Ibid.
[
Footnote 4/13]
The United States Attorneys' Manual, Title I, Ch. 11, p. 2
(revised Dec. 15, 1981), explains the real reasons why the
Government prefers use immunity to transactional immunity:
"[T]hey have, under appropriate circumstances, significant
advantages over former 'transactional immunity' statutes in that
they provide no gratuity to a testifying witness, they encourage
the giving of more complete testimony by proscribing [the] use of
everything the witness relates, and they still permit a prosecution
of the witness in the rare case where it can be shown that the
supporting evidence clearly was obtained only from independent
sources."
[
Footnote 4/14]
In his argument in
Kastigar, the Solicitor General
seemed to assume that an adequate demonstration that evidence had
an independent source would normally involve proof that the source
antedated the grand jury testimony.
See 459
U.S. 248fn4/5|>n. 5,
supra. In this case,
respondent's grand jury testimony was given in 1978, and the
deposition was taken in 1981. It would be much easier to prove that
the basis for a possible future prosecution had a pre-1981 source
than a pre-1978 source.
[
Footnote 4/15]
The enforcement interest described in the text supplements the
general public interest in accurate factfinding, an interest that
is also hindered by the Court's holding.
Cf. Lord
Chancellor Hardwicke's oft-quoted phrase, "the public has a right
to every man's evidence," 12 T. Hansard, Parliamentary History of
England 675, 693 (1812), quoted in
Kastigar v. United
States, 406 U. S. 441,
406 U. S.
443.
[
Footnote 4/16]
It is not unusual to accept a civil consent decree or a modest
penalty in exchange for the dismissal of criminal charges under the
antitrust laws.
[
Footnote 4/17]
The Court suggests,
ante at
459 U. S.
259-260, that cross-examination somehow poses unique
problems in this case. Yet it concedes that it is not unusual for a
valid assertion of a Fifth Amendment privilege to inhibit
cross-examination as to collateral matters such as credibility.
Ante at
459 U. S. 260,
n.19. It is thus concerned only that cross-examination might not be
allowed on matters about which the witness testified on direct
examination because such cross-examination will produce information
not elicited on direct. I do not understand why such
cross-examination would not be allowed; even if the information
were not itself elicited on direct, it would concern a matter about
which the witness was required to testify on direct, and would thus
be derived from the prior immunized testimony in the same way as
the direct examination. But even if it were possible that a valid
assertion of the Fifth Amendment privilege might so restrict
cross-examination that a deposition answer would be inadmissible at
trial, that is surely not a sufficient reason to establish a
constitutional privilege against giving the direct
testimony.
[
Footnote 4/18]
It is true, of course, that a witness will risk having his
extended testimony used against him later if he makes statements
that are not derived from his grand jury testimony. But the
assumption that counsel would not be able to identify those "danger
areas" demeans the competence of our trial bar. The problem raised
by such testimony is essentially the same as the problem presented
when any witness testifies in a manner that might be exploited to
uncover evidence against him. When in doubt, prudent counsel can
always obtain an authoritative court ruling by having the witness
assert the Fifth Amendment privilege.
[
Footnote 4/19]
The Court is somewhat misleading when it discusses the risk that
a trial judge may erroneously reject an assertion of a Fifth
Amendment privilege in a paragraph that discusses risks borne by
the witness. Such a risk is obviously borne by the government,
which may not make use of testimony that is "wrongfully compelled"
by a judge.
Maness v. Meyers, 419 U.
S. 449,
419 U. S. 474
(WHITE, J., concurring in result).
Cf. Garrity v. New
Jersey, 385 U. S. 493,
385 U. S. 500
(government may not use statements obtained under threat of removal
from public office).
[
Footnote 4/20]
The Court also notes that requiring the respondent to speak
increases the risk that he may reveal that he perjured himself
before the grand jury, as well as the risk that he may be exposed
to civil liability for his misdeeds.
Ante at
459 U. S. 262,
n. 22. But potential civil liability has never been held to
establish a Fifth Amendment privilege.
Cf. Ullmann v. United
States, 350 U.S. at
350 U. S.
430-431;
Brown v. Walker, 161 U.
S. 591,
161 U. S.
605-606. And respondent has never suggested that he
asserted the privilege to avoid the risk of prosecution for
perjury; the Court does not explain why that risk could not be
evaluated case by case when and if it is asserted.