The Fifth Amendment does not forbid the use in evidence against
a defendant in a criminal case in a federal court of
self-incriminating testimony theretofore compelled -- under a state
immunity statute and without participation by federal officers --
in proceedings in a state court. P.
322 U. S.
492.
136 F.2d 394 affirmed.
Certiorari, 320 U.S. 724, to review the affirmance of a
conviction, under § 215 of the Criminal Code, for using the mails
to defraud.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is an indictment under Section 215 of the Criminal Code, 18
U.S.C. § 338, for using the mails to further a fraudulent scheme.
Petitioner's conviction was affirmed
Page 322 U. S. 488
by the Circuit Court of Appeals, one judge dissenting. 136 F.2d
394. We brought the case here, 320 U.S. 724, to consider the single
question whether the admission of testimony previously given by
petitioner in supplementary proceedings in a state court deprived
him of the protection of the Fifth Amendment against being
"compelled in any criminal case to be a witness against
himself."
In accordance with New York procedure, known as supplementary
proceedings, designed to aid in the discovery of assets of a
debtor, N.Y. Civil Practice Act, art. 45, Feldman, a judgment
debtor, was called as a witness in such proceedings on several
occasions between March 31, 1936, and September 29, 1939. Up to
March 14, 1938, the New York immunity statute merely provided that
a debtor might not be excused from testifying because of
self-crimination, but that his testimony could not be used in
evidence in a subsequent criminal proceeding against him. N.Y.Laws,
1935, c. 630, § 789. By an Act of March 14, 1938, New York
broadened the debtor's immunity so as to free him from prosecution
on account of any matter revealed in his testimony. N.Y.Laws 1938,
c. 108, § 17, N.Y. Civil Practice Act, § 789. While the earlier
provision was in effect, Feldman testified that he was unemployed,
paid rent of $250 a month from funds supplied by his family, owed
about $340,000, and contemplated immediate bankruptcy. He further
testified that, about once a month, his father sent him a book of
signed checks, he sent large sums of money to his father by Western
Union and destroyed whatever evidence the receipts might offer --
in short, that he was "kiting" his father's checks by sending the
proceeds of the later checks to cover those cashed earlier. After
March 14, 1938, and down through September, 1939, Feldman again
testified in New York supplementary proceedings, giving further
details of his bizarre "kiting" practices.
Page 322 U. S. 489
The federal charge was the use of the mails in a scheme to
defraud executed by "kiting" checks. In the trial, the Government
introduced Feldman's testimony in the New York supplementary
proceedings. He did not take the stand. The Government contends
that it is unnecessary to decide whether the claim of privilege
duly made bars the admission of this testimony. It suggests that
testimony given prior to the Act of March 14, 1938, was not
compellable, and therefore Feldman waived any privilege in that the
New York statute prior to March 14, 1938, did not grant an immunity
coextensive with the privilege available under New York law.
People ex rel. Lewisohn v. O'Brien, 176 N.Y. 253, 68 N.E.
353. As to testimony under the later New York statute, the
Government suggests that it either was not incriminating or was
merely repetitive of the earlier voluntary testimony, making its
admission, in any event, not prejudicial.
We put to one side all these subtler issues, because we think
they cannot dispose of the case. And so we come directly to the
main question -- namely, whether the Fifth Amendment prohibited the
admission against Feldman upon his trial in a federal court of the
earlier testimony given by him in the state courts. While the point
has not been formally decided, we deem the answer to be controlled
by a long series of decisions expressing basic principles of our
federation.
The effective enforcement of a well designed penal code is, of
course, indispensable for social security. But the Bill of Rights
was added to the original Constitution in the conviction that too
high a price may be paid even for the unhampered enforcement of the
criminal law, and that, in its attainment, other social objects of
a free society should not be sacrificed. We are immediately
concerned with the Fourth and Fifth Amendments, intertwined as they
are and expressing as they do supplementing phases of the
Page 322 U. S. 490
same constitutional purpose -- to maintain inviolate large areas
of personal privacy.
See Boyd v. United States,
116 U. S. 616,
116 U. S.
630.
"The efforts of the courts and their officials to bring the
guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles [of the Fourth and Fifth
Amendments] established by years of endeavor and suffering which
have resulted in their embodiment in the fundamental law of the
land."
Weeks v. United States, 232 U.
S. 383,
232 U. S.
393.
"We have already noticed the intimate relation between the two
amendments. They throw great light on each other. For the
'unreasonable searches and seizures' condemned in the fourth
amendment are almost always made for the purpose of compelling a
man to give evidence against himself, which in criminal cases is
condemned in the fifth amendment, and compelling a man 'in a
criminal case to be a witness against himself,' which is condemned
in the fifth amendment, throws light on the question as to what is
an 'unreasonable search and seizure' within the meaning of the
fourth amendment. And we have been unable to perceive that the
seizure of a man's private books and papers to be used in evidence
against him is substantially different from compelling him to be a
witness against himself."
Boyd v. United States, supra, at
116 U. S.
633.
But, for more than one hundred years, ever since
Barron v.
Baltimore, 7 Pet. 243, one of the settled
principles of our Constitution has been that these Amendments
protect only against invasion of civil liberties by the Government
whose conduct they alone limit.
Brown v. Walker,
161 U. S. 591,
161 U. S. 606;
Jack v. Kansas, 199 U. S. 372,
199 U. S. 380;
Twining v. New Jersey, 211 U. S. 78.
Conversely, a State cannot, by operating within its constitutional
powers, restrict the operations of the National Government within
its sphere. The distinctive operations of the two governments
within their respective spheres is basic to our federal
constitutional system, howsoever complicated and
Page 322 U. S. 491
difficult the practical accommodations to it may be. The matter
was put in classic terms in what Chief Justice Taft called "the
great judgment,"
Ponzi v. Fessenden, 258 U.
S. 254,
258 U. S. 261,
of Chief Justice Taney in
Ableman v.
Booth, 21 How. 506,
62 U. S.
516:
"the powers of the General Government and of the State, although
both exist and are exercised within the same territorial limits,
are yet separate and distinct sovereignties, acting separately and
independently of each other within their respective spheres. And
the sphere of action appropriated to the United States is as far
beyond the reach of the judicial process issued by a State judge or
a State court as if the line of division was traced by landmarks
and monuments visible to the eye."
This principle has governed a series of decisions which, for all
practical purposes, rule the present case. When this Court for the
first time sustained an immunity statute as adequate, it rejected
the argument that, because federal immunity could not bar use in a
state prosecution of testimony compelled in a federal court, the
immunity falls short of the constitutional requirement.
Brown
v. Walker, supra, at
161 U. S. 606.
And when the reverse claim was made as to a state immunity statute,
that a disclosure compelled in a state court could not assure
immunity in a federal court, the argument was again rejected
because
"The state [antitrust] statute could not, of course, prevent a
prosecution of the same party under the United States [antitrust]
statute, and it could not prevent the testimony given by the party
in the state proceeding from being used against the same person in
a Federal court for a violation of the Federal statute, if it could
be imagined that such prosecution would be instituted under such
circumstances."
Jack v. Kansas, supra, at
199 U. S. 380.
When the matter was here last, it was thus summarized:
"This court has held that immunity against state prosecution is
not essential to the validity of federal statutes declaring that a
witness shall not be excused from giving evidence on the
Page 322 U. S. 492
ground that it will incriminate him, and also that the lack of
state power to give witnesses protection against federal
prosecution does not defeat a state immunity statute. The principle
established is that full and complete immunity against prosecution
by the government compelling the witness to answer is equivalent to
the protection furnished by the rule against compulsory
self-incrimination."
United States v. Murdock, 284 U.
S. 141,
284 U. S.
149.
And so, while evidence secured through unreasonable search and
seizure by federal officials is inadmissible in a federal
prosecution,
Weeks v. United States, supra; Gouled v. United
States, 255 U. S. 298;
Agnello v. United States, 269 U. S.
20, incriminating documents so secured by state
officials without participation by federal officials but turned
over for their use are admissible in a federal prosecution.
Burdeau v. McDowell, 256 U. S. 465.
Relevant testimony is not barred from use in a criminal trial in a
federal court unless wrongfully acquired by federal officials.
"If knowledge of them [the facts] is gained from an independent
source, they may be proved like any others, but the knowledge
gained by the Government's own wrong cannot be used by it. . .
."
Silverthorne Lumber Co. v. United States, 251 U.
S. 385,
251 U. S. 392.
This Court has refused to draw nice distinctions as to when
wrongful acquisition of evidence by state agencies was also a
federal enterprise. When a representative of the United States is a
participant in the extortion of evidence or in its illicit
acquisition, he is charged with exercising the authority of the
United States. Evidence so secured may be regained,
Go-Bart Co.
v. United States, 282 U. S. 344, and
its admission, after timely motion for its suppression, vitiates a
conviction.
Byars v. United States, 273 U. S.
28.
The Constitution prohibits an invasion of privacy only in
proceedings over which the Government has control. There is no
suggestion of complicity between Feldman's creditors and federal
law-enforcing officers. The Government
Page 322 U. S. 493
here is not seeking to benefit by evidence which it extorted. It
had no power either to compel testimony in the state court or to
forestall such disclosure as a means of avoiding possible
interference with the enforcement of the federal penal code.
Whether testimony in a New York court should be compelled in
exchange for immunity from prosecution under the penal laws of New
York is for New York to say. For what purposes the United States
may deem the disclosure of testimony more important than
prosecution for federal crimes is for Congress to say. It has seen
fit to make the exchange very sparingly.
See United States v.
Monia, 317 U. S. 424.
Certainly it is not for New York to determine when, because it
suits its local policy to employ testimonial compulsion, it will
relieve from federal prosecution "for or on account of any
transaction, matter or thing concerning which" a New York court may
have seen fit to require testimony. Such would be the practical
result of sustaining petitioner's claim. The immunity from
prosecution, like the privilege against testifying which it
supplants, pertains to a prosecution in the same jurisdiction.
Otherwise, the criminal law of the United States would be at the
hazard of carelessness or connivance in some petty civil litigation
in any state court, quite beyond the reach even of the most alert
watchfulness by law officers of the Government.
See Nardone v.
United States, 308 U. S. 338.
Only a word need be said about the phrase of scepticism in
Jack v. Kansas, supra, at
199 U. S. 380,
that it could hardly be imagined "that such prosecution would be
instituted under such circumstances." The "prosecution" and the
"circumstances" there referred to were a prosecution on the same
facts for violation of the state and the federal antitrust laws.
But see 46 U. S. Ohio,
5 How. 410,
46 U. S. 435;
United States v. Lanza, 260 U. S. 377. The
cautionary words in
Jack v. Kansas in nowise qualified the
principle of that and later cases as to the separateness in the
operation of state and
Page 322 U. S. 494
federal criminal laws and state and federal immunity provisions.
There are, as we have already seen, ample safeguards. If a federal
agency were to use a state court as an instrument for compelling
disclosures for federal purposes, the doctrine of the
Byars case,
supra, as well as that of
McNabb
v. United States, 318 U. S. 332,
afford adequate resources against such an evasive disregard of the
privilege against self-crimination.
See
United States v.
Saline Bank, 1 Pet. 100;
United States v.
McRae, L.R. 3 Ch.App. 79. Nothing in this record brings either
doctrine into play.
Judgment affirmed.
MR. JUSTICE MURPHY and MR. JUSTICE JACKSON took no part in the
consideration or decision of this case.
MR. JUSTICE BLACK, dissenting.
In
Boyd v. United States, this Court said that
"any compulsory discovery by extorting the party's oath . . . is
contrary to the principles of a free government. It is abhorrent .
. . to the instincts of an American. It may suit the purposes of
despotic power, but it cannot abide the pure atmosphere of
political liberty and personal freedom."
116 U.S.
616,
116 U. S.
631-632. [
Footnote
1] Unless the Court now is disavowing this belief, the use of
testimony obtained by compulsory discovery to convict an accused
must be considered
Page 322 U. S. 495
"shocking to the universal sense of justice" and "offensive to
the common and fundamental ideas of fairness and right," and
therefore, under past decisions of the Court, incompatible with
Constitutional due process of law.
Betts v. Brady,
316 U. S. 455,
316 U. S. 462,
316 U. S. 473.
Or at least, even if the use of testimony extracted by compulsory
discovery be held consistent with due process, adherence to the
belief expressed by the
Boyd case should require the Court
to hold that, absent a conflicting Act of Congress, "a decent
regard for the duty of courts as agencies of justice and custodians
of liberty forbids that men should be convicted upon evidence" so
obtained.
McNabb v. United States, 318 U.
S. 332,
318 U. S. 347.
But I do not base my dissent upon judicially defined concepts of
procedural due process, or upon judge-made rules of evidence. The
Bill of Rights, proposed in 1789 by the First Congress convened
under our Constitution and quickly ratified by the States in 1791,
declares in part that "[n]o person . . . shall be compelled in any
Criminal Case to be a witness against himself." Amend. V,
Constitution of the United States. Never since the Bill of Rights
was adopted, until today, has this Court sustained a single
conviction for a federal offense which rested on self-incriminatory
testimony forced from the accused. I cannot agree to do so now.
Feldman was compelled to testify under oath in a creditors'
compulsory discovery proceeding in a New York court conducted
pursuant to a state statute which granted him immunity from state
prosecution for any state crime he might be forced to confess. Had
he refused to testify, he could have been imprisoned. Over his
objection, a transcript of his compelled testimony was used in the
United States District Court to convict him of a federal crime. As
the Fifth Amendment heretofore has been interpreted, Feldman's
testimony could not have been used for this purpose had it been
compelled by a federal
Page 322 U. S. 496
court, rather than the state court. [
Footnote 2] This would have been true whether the federal
court proceeding had been noncriminal or criminal, [
Footnote 3] and whether Feldman had testified
as a mere witness or as a defendant. [
Footnote 4] Nor could his forced testimony have been used
had it been compelled by federal officers outside of a courtroom;
[
Footnote 5] by foreign
detectives in a foreign country inquiring into commission of an
offense against the United States committed on the high seas;
[
Footnote 6] or by state
officers interrogating a suspect for the purpose of enforcing a
federal law. [
Footnote 7] There
is, then, no sanction in the precedents of this Court for viewing
the Fifth Amendment's prohibition against compelled testimony with
grudging eyes and reducing its scope to the narrowest plausible
limits. As the decisions reflect, the previously declared attitude
of the Court toward this prohibition has been that it "must have a
broad construction in favor of the right which it was intended to
secure."
Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S. 562;
McCarthy v. Arndstein, 266 U. S. 34.
Today, however, the Court adopts a different approach to the
task of construing the Fifth Amendment. We are now told that, under
certain circumstances, compelled testimony is purged of the fatal
taint which the Fifth Amendment places upon it, and that an accused
can be convicted
Page 322 U. S. 497
in a federal court on words he was forced to speak. The
circumstances under which it is now held that men can be forced to
convict themselves by their own testimony are, (1) that the
testimony was compelled by state officers, and (2) that the state
officers were not acting to enforce federal law. These slight
variations in the techniques of compulsion are considered a
sufficient excuse to escape the Fifth Amendment's command against
the use of compelled testimony by federal courts. Surely such a
holding is not to be justified by the language of that Amendment.
Within its sweeping prohibition are found no exceptions based upon
the persons who compel, their purpose in compelling, or their
method of compelling, whether by threats of imprisonment, physical
torture, or other means. Testimony is no less compelled because a
state, rather than a federal officer, compels it, or because the
state officer appears to be primarily interested at the moment in
enforcing a state, rather than a federal, law.
Nor is the holding in this case to be defended as one which our
federal system requires. This case presents no conflict between
federal and state spheres of power such as that presented by cases
involving the validity of federal and state immunity statutes,
wherein it has been contended, unsuccessfully, that neither the
United States nor a State can compel a witness to testify against
himself unless it grant him complete immunity from prosecution in
both jurisdictions. [
Footnote
8] Feldman's objection to the use of
Page 322 U. S. 498
his compelled testimony is not based on a claim that New York
must grant him, or has granted him, immunity from prosecution for
the federal crime it has forced him to confess. He does not
question the power of the United States to prosecute him for that
crime on proper evidence. Nor, for that matter, does he contend
that the Fifth Amendment prevented New York from compelling him to
confess a federal crime. [
Footnote
9] He claims only that the Fifth Amendment's prohibition
against self-incrimination prevents the use of his compelled
testimony against him in the present proceeding. The very narrow
problem thus presented, and upon which this Court never before has
passed, is whether federal courts can convict a defendant of a
federal crime by use of self-incriminatory testimony which someone,
in some manner, has extracted from him against his will. The
Court's holding that a defendant can be so convicted cuts into the
very substance of the Fifth Amendment. And it justifies this result
not by the language or history of the Constitution itself, but by a
process of syllogistic reasoning based upon broad premises of "dual
sovereignty" stated in previous opinions of the Court relating to
immunity statutes. Even were there here a "dual
Page 322 U. S. 499
sovereignty" problem, which there is not, such a method of
decision would be questionable. Constitutional interpretation
should involve more than dialectics. The great principles of
liberty written in the Bill of Rights cannot safely be treated as
imprisoned in walls of formal logic built upon vague abstractions
found in the United States Reports. "The ultimate touchstone of
constitutionality is the Constitution itself, and not what we have
said about it."
Graves v. New York ex rel. O'Keefe,
306 U. S. 466,
concurring opinion,
306 U. S. 487,
306 U. S. 491.
[
Footnote 10]
Putting aside the Court's dialectical method of interpretation
and examining the history and purpose of the Fifth Amendment, there
appears to be no justification for reducing its scope, as the Court
is now doing. Compulsion of self-incriminatory testimony by court
oaths and by the less refined methods of torture were equally
detested by the Fifth Amendment's liberty-loving advocates and
their forbears. [
Footnote
11] Their abhorrence of these practices did not spring alone
from a predilection for personal privacy. They had other reasons to
despise and fear them. They still remembered the hated practices of
the Court of Star Chamber, the Court of High Commission, and other
inquisitorial agencies which had brought religious and political
nonconformists within the penalties of the law by means of their
own testimony. And history supports no argument that the framers of
the Fifth Amendment were interested only in forbidding the
extraction of an accused's testimony, as distinguished from the use
of his extracted testimony. The extraction of testimony is, of
course, but a means to the end of its use to punish. Few
persons
Page 322 U. S. 500
would seriously object to testifying unless their testimony
would subject them to future punishment. The real evil aimed at by
the Fifth Amendment's flat prohibition against the compulsion of
self-incriminatory testimony was that thought to inhere in using a
man's compelled testimony to punish him. By broadly outlawing the
practice of compelling such testimony, the Fifth Amendment struck
at this evil at its source, seeking to eliminate the possibility
that compelled testimony would ever be available for use to punish
a defendant. [
Footnote
12]
Perhaps, as some have argued, the men who framed this Amendment
were mistaken, or their fears have lost foundation and the
unqualified prohibition against the extraction and use of compelled
testimony which they put into the Fifth Amendment should be
repealed or modified. [
Footnote
13] This view of the desirability of constricting the Fifth
Amendment I am not ready to accept, but, were it otherwise, I would
not consider such a view should play any part in the process of
interpretation. I am unwilling to see any constriction of the
liberties and the procedural safeguards of these liberties
specifically enumerated in the Bill of Rights unless it be by
Constitutional amendment. [
Footnote 14]
The prohibition against compelled testimony which the Court
today has seen fit to restrict cannot cannot be dissociated
Page 322 U. S. 501
from the other specific protections afforded the individual by
the Bill of Rights. The founders of our federal government were too
close to oppressions and persecutions of the unorthodox, the
unpopular, and the less influential to trust even elected
representatives with unlimited powers of control over the
individual. From their distrust were derived the first ten
amendments, designed, as a whole, to "limit and qualify the powers
of Government," to define "cases in which the Government ought not
to act, or to act only in a particular mode," and to protect
unpopular minorities from oppressive majorities. 1 Annals 437. The
first of the ten amendments erected a Constitutional shelter for
the people's liberties of religion, speech, press, and assembly.
This amendment reflects the faith that a good society is not
static, but advancing, and that the fullest possible interchange of
ideas and beliefs is essential to attainment of this goal. The
proponents of the First Amendment, committed to this faith, were
determined that every American should possess an unrestrained
freedom to express his views, however odious they might be to
vested interests whose power they might challenge.
But these men were not satisfied that the First Amendment would
make this right sufficiently secure . As they well knew, history
teaches that attempted exercises of the freedoms of religion,
speech, press, and assembly have been the commonest occasions for
oppression and persecution. Inevitably such persecutions have
involved secret arrests, unlawful detentions, forced confessions,
secret trials, and arbitrary punishments under oppressive laws.
Therefore, it is not surprising that the men behind the First
Amendment also insisted upon the Fifth, Sixth, and Eighth
Amendments, designed to protect all individuals against arbitrary
punishment by definite procedural provisions guaranteeing fair
public trials by juries. They sought by these provisions to assure
that no individual could be punished except according to "due
process," by
Page 322 U. S. 502
which they certainly intended that no person could be punished
except for a violation of definite and validly enacted laws of the
land, and after a trial conducted in accordance with the specific
procedural safeguards written in the Bill of Rights. [
Footnote 15] If occasionally these
safeguards worked to the advantage of an ordinary criminal, that
was a price they were willing to pay for the freedom they
cherished. And one of the specific procedural safeguards which they
inserted to shield the individual was the prohibition against
compulsion of self-incriminatory testimony.
It is impossible for me to reconcile today's restrictive
interpretation of the prohibition against compelled
self-incrimination with the principle of broad construction which
this Court heretofore has deemed essential to full preservation of
the basic safeguards of liberty specifically enumerated in the Bill
of Rights. The protections explicitly afforded the individual by
the Bill of Rights represent a large part of the characteristics
which distinguish free from totalitarian government. Under our
Constitutional system, the privileges it embodies and the rights it
secures were intended to be above and beyond the power of any
branch of government to mutilate or destroy. We have no assurance
that the fears of those who drafted and adopted our Bill of Rights
were groundless, nor that the reasons for those fears no longer
exist. Ancient evils historically associated with the possession of
unqualified power to impose criminal punishment on individuals have
a dangerous habit of reappearing when tried safeguards are
removed.
This case involves the Fifth, not the Fourth, Amendment.
Decisions which have read the Fourth and Fifth Amendments together
for the purpose of broadening the Fourth Amendment should not now
be employed to narrow the Fifth Amendment. To do so ignores the
particular
Page 322 U. S. 503
reasoning of these decisions, as well as the separate language
and history of the two Amendments.
See Boyd v. United States,
supra; Counselman v. Hitchcock, supra; Brown v. Walker,
161 U. S. 591;
VIII Wigmore on Evidence, Third Ed. pp. 276-304, 368. Nothing this
Court has said with regard to the Fourth Amendment requires that we
now open the door which the Fifth Amendment, in 1791, closed to
compelled self-incrimination.
I would reverse the judgment.
MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE join in this
opinion.
[
Footnote 1]
And see Jack v. Kansas, 199 U.
S. 372, where this Court disposed of an argument that a
Kansas statute unconstitutionally compelled Jack to confess his
violations of a federal criminal statute with the assertion that
"[w]e do not believe . . . such evidence would be availed of by the
Government for such purpose."
Id., 199 U. S.
381-382. In an earlier case,
Brown v. Walker,
161 U. S. 591,
this Court thought that the likelihood that state prosecutors would
use testimony compelled by the federal government was "so
improbable that no reasonable man would suffer it to influence his
conduct."
Id., 161 U. S.
606-608.
But see Ensign v. Pennsylvania,
227 U. S. 592.
[
Footnote 2]
McCarthy v. Arndstein, 266 U. S.
34,
and see Bram v. United States, 168 U.
S. 532;
Ziang Sung Wan v. United States,
266 U. S. 1;
cf.
Boyd v. United States, 116 U. S. 616.
[
Footnote 3]
McCarthy v. Arndstein, supra, Note
2 pp.
266 U. S. 40-41;
Counselman v. Hitchcock, 142 U. S. 547,
142 U. S. 562.
See also United States ex rel. Bilokumsky v. Tod,
263 U. S. 149;
United States ex rel. Vajtauer v. Commissioner of
Immigration, 273 U. S. 103.
[
Footnote 4]
Counselman v. Hitchcock, 142 U.
S. 547.
[
Footnote 5]
[
Footnote 6]
Bram v. United States, supra, Note 2
[
Footnote 7]
Anderson v. United States, supra, Note 5 and see Bram v. United States,
supra, Note 2
[
Footnote 8]
See Hale v. Henkel, 201 U. S. 43, and
United States v. Murdock, 284 U.
S. 141, holding it enough that the United States grant
immunity from prosecution for federal crimes;
but see, contra,
26 U. S. Saline
Bank, 1 Pet. 100;
Ballmann v. Fagin, 200 U.
S. 186. Had the Court in the
Murdock case,
supra, accepted the contention that the federal government
must grant an immunity from state as well as federal prosecution,
it would inevitably have been faced with the problem of the federal
power to interfere with enforcement of state laws through the
device of granting immunity from state prosecution to witnesses in
federal proceedings -- a problem replete with both practical and
legal difficulties.
See J.A.C. Grant, Immunity From
Compulsory Self-Incrimination In A Federal System of Government, 9
Temple L.Q. 57 and 194, 207-211.
Compare Jack v. Kansas, supra, Note 1 holding that Kansas could compel a witness to
testify to his past crimes upon a grant of immunity from state
prosecution, though he still be subject to federal prosecution. In
reaching this result, the Court took specific notice of the fact
that, were the rule otherwise, state immunity statutes must all be
stricken down. "The state statute could not, of course, prevent a
prosecution of the same party under the United States statute."
199 U. S. 199 U.S.
372,
199 U. S.
380.
[
Footnote 9]
See Twining v. New Jersey, 211 U. S.
78, and
Ensign v. Pennsylvania, supra, Note 1 holding respectively that,
despite the Fourteenth Amendment, a state may compel a defendant to
incriminate himself, and may use against him schedules he filed in
an involuntary federal bankruptcy proceeding.
But see Ashcraft
v. Tennessee, 322 U. S. 143.
[
Footnote 10]
For a criminal analysis of the conflict between the legal
concept of "dual sovereignty" and preservation of the
Constitutional prohibition against self-incrimination,
see
J.A.C. Grant,
op. cit. supra, Note 8
[
Footnote 11]
See Pittman, The Colonial and Constitutional History of
the Privilege Against Self-Incrimination in America, 21 Va.L.Rev.
763, 775-783.
[
Footnote 12]
See United States v. Burr, 25 Fed.Cas. 38-41;
Counselman v. Hitchcock, 142 U. S. 547,
142 U. S.
564-566;
Brown v. Walker, 161 U.
S. 591,
161 U. S. 594,
161 U. S. 600,
161 U. S.
605-606;
cf. 85 U. S. 18
Wall. 163,
85 U. S. 173.
And see Pittman,
op. cit. supra, Note 11 and cases cited Notes
5 6, and 7,
supra.
[
Footnote 13]
Compare Knox, Self-Incrimination, 74 Univ.Pa.L.Rev.
139,
with VIII Wigmore on Evidence, Third Ed., pp.
304-313,
and see Editorial, 16 Journ.Crim.Law and Crim.
165-166.
[
Footnote 14]
See dissenting opinion of Circuit Judge Frank in
United States v. St. Pierre, 132 F.2d 837, 840 at 847,
848.
"Strangely enough, those who are most opposed to any changes in
judicial constructions of those designedly elastic clauses of the
Constitution are often the most vigorous in their demands that the
courts should eviscerate the specific and relatively inelastic
self-incrimination clause."
Id. 132 F.2d at 848.
[
Footnote 15]
See Chambers v. Florida, 309 U.
S. 227,
309 U. S.
235-238;
Tot v. United States, 319 U.
S. 463,
319 U. S.
473.