The United States can compel testimony from an unwilling witness
who invokes the Fifth Amendment privilege against compulsory
self-incrimination by conferring immunity, as provided by 18 U.S.C.
§ 6002, from use of the compelled testimony and evidence derived
therefrom in subsequent criminal proceedings, as such immunity from
use and derivative use is coextensive with the scope of the
privilege and is sufficient to compel testimony over a claim of the
privilege. Transactional immunity would afford broader protection
than the Fifth Amendment privilege, and is not constitutionally
required. In a subsequent criminal prosecution, the prosecution has
the burden of proving affirmatively that evidence proposed to be
used is derived from a legitimate source wholly independent of the
compelled testimony. Pp.
406 U. S.
443-462.
440 F.2d 954, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined. DOUGLAS, J.,
post, p.
406 U. S. 462,
and MARSHALL, J.,
post, p.
406 U. S. 467,
filed dissenting opinions. BRENNAN and REHNQUIST, JJ., took no part
in the consideration or decision of the case.
Page 406 U. S. 442
MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents the question whether the United States
Government may compel testimony from an unwilling witness, who
invokes the Fifth Amendment privilege against compulsory
self-incrimination, by conferring on the witness immunity from use
of the compelled testimony in subsequent criminal proceedings, as
well as immunity from use of evidence derived from the
testimony.
Petitioners were subpoenaed to appear before a United States
grand jury in the Central District of California on February 4,
1971. The Government believed that petitioners were likely to
assert their Fifth Amendment privilege. Prior to the scheduled
appearances, the Government applied to the District Court for an
order directing petitioners to answer questions and produce
evidence before the grand jury under a grant of immunity conferred
pursuant to 18 U.S.C. §§ 6002-6003. Petitioners opposed issuance of
the order, contending primarily that the scope of the immunity
provided by the statute was not coextensive with the scope of the
privilege against self-incrimination, and therefore was not
sufficient to supplant the privilege and compel their testimony.
The District Court rejected this contention, and ordered
petitioners to appear before the grand jury and answer its
questions under the grant of immunity.
Petitioners appeared but refused to answer questions, asserting
their privilege against compulsory self-incrimination. They were
brought before the District Court, and each persisted in his
refusal to answer the grand jury's questions, notwithstanding the
grant of immunity. The court found both in contempt, and committed
them to the custody of the Attorney General until either they
answered the grand jury's questions or the term of the grand jury
expired. [
Footnote 1] The Court
of
Page 406 U. S. 443
Appeals for the Ninth Circuit affirmed.
Stewart v. United
States, 440 F.2d 954 (CA9 1971). This Court granted certiorari
to resolve the important question whether testimony may be
compelled by granting immunity from the use of compelled testimony
and evidence derived therefrom ("use and derivative use" immunity),
or whether it is necessary to grant immunity from prosecution for
offenses to which compelled testimony relates ( "transactional"
immunity). 402 U.S. 971 (1971).
I
The power of government to compel persons to testify in court or
before grand juries and other governmental agencies is firmly
established in Anglo-American jurisprudence. [
Footnote 2] The power with respect to courts was
established by statute in England as early as 1562, [
Footnote 3] and Lord Bacon observed in 1612
that all subjects owed the King their "knowledge and discovery."
[
Footnote 4] While it is not
clear when grand juries first resorted to compulsory process to
secure the attendance and testimony of witnesses, the general
common law principle that "the public has a right to every man's
evidence" was considered an "indubitable certainty" that "cannot be
denied" by 1742. [
Footnote 5]
The power to compel testimony, and the corresponding duty to
testify, are recognized in the Sixth Amendment
Page 406 U. S. 444
requirements that an accused be confronted with the witnesses
against him, and have compulsory process for obtaining witnesses in
his favor. The first Congress recognized the testimonial duty in
the Judiciary Act of 1789, which provided for compulsory attendance
of witnesses in the federal courts. [
Footnote 6] MR. JUSTICE WHITE noted the importance of this
essential power of government in his concurring opinion in
Murphy v. Waterfront Comm'n, 378 U. S.
52,
378 U. S. 93-94
(1964):
"Among the necessary and most important of the powers of the
States as well as the Federal Government to assure the effective
functioning of government in an ordered society is the broad power
to compel residents to testify in court or before grand juries or
agencies.
See Blair v. United States, 250 U. S.
273. Such testimony constitutes one of the Government's
primary sources of information."
But the power to compel testimony is not absolute. There are a
number of exemptions from the testimonial duty, [
Footnote 7] the most important of which is
the Fifth Amendment privilege against compulsory
self-incrimination. The privilege reflects a complex of our
fundamental values and aspirations, [
Footnote 8] and marks an important advance in the
development of our liberty. [
Footnote 9] It can be asserted in any proceeding, civil or
criminal, administrative or judicial, investigatory or
adjudicatory, [
Footnote 10]
and it
Page 406 U. S. 445
protects against any disclosures that the witness reasonably
believes could be used in a criminal prosecution or could lead to
other evidence that might be so used. [
Footnote 11] This Court has been zealous to safeguard
the values that underlie the privilege. [
Footnote 12]
Immunity statutes, which have historical roots deep in
Anglo-American jurisprudence, [
Footnote 13] are not incompatible
Page 406 U. S. 446
with these values. Rather, they seek a rational accommodation
between the imperatives of the privilege and the legitimate demands
of government to compel citizens to testify. The existence of these
statutes reflects the importance of testimony and the fact that
many offenses are of such a character that the only persons capable
of giving useful testimony are those implicated in the crime.
Indeed, their origins were in the context of such offenses,
[
Footnote 14]
Page 406 U. S. 447
and their primary use has been to investigate such offenses.
[
Footnote 15] Congress
included immunity statutes in many of the regulatory measures
adopted in the first half of this century. [
Footnote 16] Indeed, prior to the enactment of
the statute under consideration in this case, there were in force
over 50 federal immunity statutes. [
Footnote 17] In addition, every State in the Union, as
well as the District of Columbia and Puerto Rico, has one or more
such statutes. [
Footnote 18]
The commentators, [
Footnote
19] and this Court on several occasions, [
Footnote 20] have characterized immunity
statutes as essential to the effective enforcement of various
criminal statute. As Mr. Justice Frankfurter observed, speaking for
the Court in
Ullmann v. United States, 350 U.
S. 422 (1856), such statutes have "become part of our
constitutional fabric." [
Footnote 21]
Id. at
350 U. S.
438.
Page 406 U. S. 448
II
Petitioners contend, first, that the Fifth Amendment's privilege
against compulsory self-incrimination, which is that "[n]o person .
. . shall be compelled in any criminal case to be a witness against
himself," deprives Congress of power to enact laws that compel
self-incrimination, even if complete immunity from prosecution is
granted prior to the compulsion of the incriminatory testimony. In
other words, petitioners assert that no immunity statute, however
drawn, can afford a lawful basis for compelling incriminatory
testimony. They ask us to reconsider and overrule
Brown v.
Walker, 161 U. S. 591
(1896), and
Ullmann v. United States, supra, decisions
that uphold the constitutionality of immunity statutes. [
Footnote 22] We find no merit to
this contention, and reaffirm the decisions in
Brown and
Ullmann.
III
Petitioners' second contention is that the scope of immunity
provided by the federal witness immunity statute, 18 U.S.C. § 6002,
is not coextensive with the scope of the Fifth Amendment privilege
against compulsory self-incrimination, and therefore is not
sufficient to supplant the privilege and compel testimony over a
claim of the privilege. The statute provides that, when a witness
is compelled by district court order to testify over a claim of the
privilege:
"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
Page 406 U. S. 449
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. [
Footnote 23]"
23 18 U.S.C. § 6002.
The constitutional inquiry, rooted in logic and history as well
as in the decisions of this Court, is whether the immunity granted
under this statute is coextensive with the scope of the privilege.
[
Footnote 24] If so,
petitioners' refusals to answer based on the privilege were
unjustified, and the judgments of contempt were proper, for the
grant of immunity has removed the dangers against which the
privilege protects.
Brown v. Walker, supra. If, on the
other hand, the immunity granted is not as comprehensive as the
protection afforded by the privilege, petitioners were justified in
refusing to answer, and the judgments of contempt must be vacated.
McCarthy v. Arndstein, 266 U. S. 34,
266 U. S. 42
(1924).
Petitioners draw a distinction between statutes that provide
transactional immunity and those that provide, as does the statute
before us, immunity from use and derivative use. [
Footnote 25] They contend that a statute
must, at a minimum, grant full transactional immunity in order to
be coextensive with the scope of the privilege. In support of this
contention, they rely on
Counselman v. Hitchcock,
142 U. S. 547
(1892), the first case in which this Court considered a
constitutional challenge to an immunity statute. The statute, a
reenactment of the Immunity Act of 1868, [
Footnote 26] provided that no
"evidence obtained from a party or witness by means of a
judicial
Page 406 U. S. 450
proceeding . . . shall be given in evidence, or in any manner
used against him . . . in any court of the United States. . . .
[
Footnote 27]"
Notwithstanding a grant of immunity and order to testify under
the revised 1868 Act, the witness, asserting his privilege against
compulsory self-incrimination, refused to testify before a federal
grand jury. He was consequently adjudged in contempt of court.
[
Footnote 28] On appeal,
this Court construed the statute as affording a witness protection
only against the use of the specific testimony compelled from him
under the grant of immunity. This construction meant that the
statute "could not, and would not, prevent the use of his testimony
to search out other testimony to be used in evidence against him."
[
Footnote 29] Since the
revised 1868 Act, as construed by the Court, would permit the use
against the immunized witness of evidence derived from his
compelled testimony, it did not protect the witness to the same
extent that a claim of the privilege would protect him.
Accordingly, under the principle that a grant of immunity cannot
supplant the privilege, and is not sufficient to compel testimony
over a claim of the privilege, unless the scope of the grant of
immunity is coextensive with the scope of the privilege, [
Footnote 30] the witness' refusal to
testify was held proper. In the course of its opinion, the Court
made the following statement, on which petitioners heavily
rely:
"We are clearly of opinion that no statute which leaves the
party or witness subject to prosecution
Page 406 U. S. 451
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. [The immunity statute under
consideration] does not supply a complete protection from all the
perils against which the constitutional prohibition was designed to
guard, and is not a full substitute for that prohibition. In view
of the constitutional provision, a statutory enactment, to be
valid, must afford absolute immunity against future prosecution for
the offence to which the question relates."
142 U.S. at
142 U. S.
585-586.
Sixteen days after the
Counselman decision, a new
immunity bill was introduced by Senator Cullom, [
Footnote 31] who urged that enforcement of
the Interstate Commerce Act would be impossible in the absence of
an effective immunity statute. [
Footnote 32] The bill, which became the Compulsory
Testimony Act of 1893, [
Footnote
33] was drafted specifically to meet the broad language in
Counselman set forth above. [
Footnote 34] The new Act removed the privilege against
self-incrimination in hearings before the Interstate Commerce
Commission, and provided that:
"no person shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing,
concerning which he may testify, or produce evidence, documentary
or otherwise. . . ."
Act of Feb. 11, 1893, 27 Stat. 444.
Page 406 U. S. 452
This transactional immunity statute became the basic form for
the numerous federal immunity statutes [
Footnote 35] until 1970, when, after reexamining
applicable constitutional principles and the adequacy of existing
law, Congress enacted the statute here under consideration.
[
Footnote 36] The new
statute, which does not "afford [the] absolute immunity against
future prosecution" referred to in
Counselman, was drafted
to meet what Congress judged to be the conceptual basis of
Counselman, as elaborated in subsequent decisions of the
Court, namely, that immunity from the
Page 406 U. S. 453
use of compelled testimony and evidence derived therefrom is
coextensive with the scope of the privilege. [
Footnote 37]
The statute's explicit proscription of the use in any criminal
case of
"testimony or other information compelled under the order (or
any information directly or indirectly derived from such testimony
or other information)"
is consonant with Fifth Amendment standards. We hold that such
immunity from use and derivative use is coextensive with the scope
of the privilege against self-incrimination, and therefore is
sufficient to compel testimony over a claim of the privilege. While
a grant of immunity must afford protection commensurate with that
afforded by the privilege, it need not be broader. Transactional
immunity, which accords full immunity from prosecution for the
offense to which the compelled testimony relates, affords the
witness considerably broader protection than does the Fifth
Amendment privilege. The privilege has never been construed to mean
that one who invokes it cannot subsequently be prosecuted. Its sole
concern is to afford protection against being "forced to give
testimony leading to the infliction of
penalties affixed to . .
. criminal acts.'" [Footnote
38] Immunity from the use of compelled testimony, as well as
evidence derived directly and indirectly therefrom, affords this
protection. It prohibits the prosecutorial authorities from using
the compelled testimony in any respect, and it therefore insures
that the testimony cannot lead to the infliction of criminal
penalties on the witness.
Our holding is consistent with the conceptual basis of
Counselman. The
Counselman statute, as construed
by the Court, was plainly deficient in its failure to
Page 406 U. S. 454
prohibit the use against the immunized witness of evidence
derived from his compelled testimony. The Court repeatedly
emphasized this deficiency, noting that the statute:
"could not, and would not, prevent the use of his testimony to
search out other testimony to be used in evidence against him or
his property, in a criminal proceeding . . ."
142 U.S. at
142 U. S.
564;
that 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,"
ibid.; and that it:
"affords no protection against that use of compelled testimony
which consists in gaining therefrom a knowledge of the details of a
crime, and of sources of information which may supply other means
of convicting the witness or party."
142 U.S. at
142 U. S. 586.
The basis of the Court's decision was recognized in
Ullmann v.
United States, 350 U. S. 422
(1956), in which the Court reiterated that the
Counselman
statute was insufficient:
"because the immunity granted was incomplete, in that it merely
forbade the use of the testimony given and failed to protect a
witness from future prosecution
based on knowledge and sources
of information obtained from the compelled testimony."
Id. at
350 U. S. 437.
(Emphasis supplied.)
See also Arndstein v. McCarthy,
254 U. S. 71,
254 U. S. 73
(1920). The broad language in
Counselman relied upon by
petitioners
Page 406 U. S. 455
was unnecessary to the Court's decision, and cannot be
considered binding authority. [
Footnote 39]
In
Murphy v. Waterfront Comm'n, 378 U. S.
52 (1964), the Court carefully considered immunity from
use of compelled testimony and evidence derived therefrom. The
Murphy petitioners were subpoenaed to testify at a hearing
conducted by the Waterfront Commission of New York Harbor. After
refusing to answer certain questions on the ground that the answers
might tend to incriminate them, petitioners were granted
immunity
Page 406 U. S. 456
from prosecution under the laws of New Jersey and New York.
[
Footnote 40] They continued
to refuse to testify, however, on the ground that their answers
might tend to incriminate them under federal law, to which the
immunity did not purport to extend. They were adjudged in civil
contempt, and that judgment was affirmed by the New Jersey Supreme
Court. [
Footnote 41]
The issue before the Court in
Murphy was whether New
Jersey and New York could compel the witnesses, whom these States
had immunized from prosecution under their laws, to give testimony
that might then be used to convict them of a federal crime. Since
New Jersey and New York had not purported to confer immunity from
federal prosecution, the Court was faced with the question what
limitations the Fifth Amendment privilege imposed on the
prosecutorial powers of the Federal Government, a nonimmunizing
sovereign. After undertaking an examination of the policies and
purposes of the privilege, the Court overturned the rule that one
jurisdiction within our federal structure may compel a witness to
give testimony which could be used to convict him of a crime in
another jurisdiction. [
Footnote
42] The Court held that the privilege protects state witnesses
against incrimination under federal as well as state law, and
federal witnesses against incrimination
Page 406 U. S. 457
under state, as well as federal, law. Applying this principle to
the state immunity legislation before it, the Court held the
constitutional rule to be that:
"[A] state witness may not be compelled to give testimony which
may 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. We
conclude, moreover, that, in order to implement this constitutional
rule and accommodate the interests of the State and Federal
Governments in investigating and prosecuting crime, the Federal
Government must be prohibited from making any such use of compelled
testimony and its fruits. [
Footnote 43]"
378 U.S. at
378 U. S. 79.
The Court emphasized that this rule left the state witness and the
Federal Government, against which the witness had immunity only
from the use of the compelled testimony and evidence derived
therefrom, "in substantially the same position as if the witness
had claimed his privilege in the absence of a state grant of
immunity."
Ibid.
It is true that, in
Murphy, the Court was not presented
with the precise question presented by this case, whether a
jurisdiction seeking to compel testimony may do so by granting only
use and derivative use immunity, for New Jersey and New York had
granted petitioners transactional immunity. The Court heretofore
has not
Page 406 U. S. 458
squarely confronted this question, [
Footnote 44] because post-
Counselman immunity
statutes reaching the Court either have followed the pattern of the
1893 Act in providing transactional immunity [
Footnote 45] or have been found deficient for
failure to prohibit the use of all evidence derived from compelled
testimony. [
Footnote 46] But
both the reasoning of the Court in
Murphy and the result
reached compel the conclusion that use and derivative use immunity
is constitutionally sufficient to compel testimony over a claim of
the privilege. Since the privilege is fully applicable and its
scope is the same whether invoked in a state or in a federal
jurisdiction, [
Footnote 47]
the
Murphy conclusion that a prohibition on use and
derivative use secures a witness' Fifth Amendment privilege against
infringement by the Federal Government demonstrates that immunity
from use and derivative use is coextensive with the scope of the
privilege. As the
Murphy Court noted, immunity from use
and derivative use "leaves the witness and the Federal Government
in substantially the same position
Page 406 U. S. 459
as if the witness had claimed his privilege" [
Footnote 48] in the absence of a grant of
immunity. The
Murphy Court was concerned solely with the
danger of incrimination under federal law, and held that immunity
from use and derivative use was sufficient to displace the danger.
This protection coextensive with the privilege is the degree of
protection that the Constitution requires, and is all that the
Constitution requires even against the jurisdiction compelling
testimony by granting immunity. [
Footnote 49]
IV
Although an analysis of prior decisions and the purpose of the
Fifth Amendment privilege indicates that use and derivative use
immunity is coextensive with the privilege, we must consider
additional arguments advanced by petitioners against the
sufficiency of such immunity. We start from the premise, repeatedly
affirmed by this Court, that an appropriately broad immunity grant
is compatible with the Constitution.
Petitioners argue that use and derivative use immunity will not
adequately protect a witness from various possible incriminating
uses of the compelled testimony: for example, the prosecutor or
other law enforcement officials may obtain leads, names of
witnesses, or other information not otherwise available that might
result in a prosecution. It will be difficult, and perhaps
impossible, the argument goes, to identify, by testimony or
cross-examination, the subtle ways in which the compelled testimony
may disadvantage a witness, especially in the jurisdiction granting
the immunity.
This argument presupposes that the statute's prohibition
Page 406 U. S. 460
will prove impossible to enforce. The statute provides a
sweeping proscription of any use, direct or indirect, of the
compelled testimony and any information derived therefrom:
"[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. This total prohibition on use provides a
comprehensive safeguard, barring the use of compelled testimony as
an "investigatory lead," [
Footnote 50] and also barring the use of any evidence
obtained by focusing investigation on a witness as a result of his
compelled disclosures.
A person accorded this immunity under 18 U.S.C. § 6002, and
subsequently prosecuted, is not dependent for the preservation of
his rights upon the integrity and good faith of the prosecuting
authorities. As stated in
Murphy:
"Once a defendant demonstrates that he has testified, under a
state grant of immunity, to matters related to the federal
prosecution, the federal authorities have the burden of showing
that their evidence is not tainted by establishing that they had an
independent, legitimate source for the disputed evidence."
378 U.S. at
378 U. S. 79 n.
18. This 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.
Page 406 U. S. 461
This is very substantial protection, [
Footnote 51] commensurate with that resulting from
invoking the privilege itself. The privilege assures that a citizen
is not compelled to incriminate himself by his own testimony. It
usually operates to allow a citizen to remain silent when asked a
question requiring an incriminatory answer. This statute, which
operates after a witness has given incriminatory testimony, affords
the same protection by assuring that the compelled testimony can in
no way lead to the infliction of criminal penalties. The statute,
like the Fifth Amendment, grants neither pardon nor amnesty. Both
the statute and the Fifth Amendment allow the government to
prosecute using evidence from legitimate independent sources.
The statutory proscription is analogous to the Fifth Amendment
requirement in cases of coerced confessions. [
Footnote 52] A coerced confession, as revealing
of leads as testimony given in exchange for immunity, [
Footnote 53] is inadmissible in a
criminal trial, but it does not bar prosecution. [
Footnote 54] Moreover, a defendant against
whom incriminating evidence has been obtained through a grant of
immunity may be in a stronger position at trial than a defendant
who asserts a Fifth Amendment coerced confession claim. One raising
a claim under this statute need only show that he testified under a
grant of immunity in order to shift to the government the heavy
burden of proving that all of the evidence it proposes to use was
derived from
Page 406 U. S. 462
legitimate independent sources. [
Footnote 55] On the other hand, a defendant raising a
coerced confession claim under the Fifth Amendment must first
prevail in a voluntariness hearing before his confession and
evidence derived from it become inadmissible. [
Footnote 56]
There can be no justification in reason or policy for holding
that the Constitution requires an amnesty grant where, acting
pursuant to statute and accompanying safeguards, testimony is
compelled in exchange for immunity from use and derivative use when
no such amnesty is required where the government, acting without
colorable right, coerces a defendant into incriminating
himself.
We conclude that the immunity provided by 18 U.S.C. 6002 leaves
the witness and the prosecutorial authorities in substantially the
same position as if the witness had claimed the Fifth Amendment
privilege. The immunity therefore is coextensive with the privilege
and suffices to supplant it. The judgment of the Court of Appeals
for the Ninth Circuit accordingly is
Affirmed.
MR. JUSTICE BRENNAN and MR. JUSTICE REHNQUIST took no part in
the consideration or decision of this case.
[
Footnote 1]
The contempt order was issued pursuant to 28 U.S.C. § 1826.
[
Footnote 2]
For a concise history of testimonial compulsion prior to the
adoption of our Constitution,
see 8 J. Wigmore, Evidence §
2190 (J. McNaughton rev.1961).
See Ullmann v. United
States, 350 U. S. 422,
350 U. S. 439
n. 15 (1956);
Blair v. United States, 250 U.
S. 273 (1919).
[
Footnote 3]
Statute of Elizabeth, 5 Eliz. 1, c. 9, § 12 (1562).
[
Footnote 4]
Countess of Shrewsbury's Case, 2 How.St.Tr. 769, 778
(1612).
[
Footnote 5]
See the parliamentary debate on the Bill to Indemnify
Evidence, particularly the remarks of the Duke of Argyle and Lord
Chancellor Hardwicke, reported in 12 T. Hansard, Parliamentary
History of England 675, 693 (1812).
See also Piemonte v. United
States, 367 U. S. 556,
367 U. S. 559
n. 2 (1961);
Ullmann v. United States, supra, at
350 U. S. 439
n. 15;
Brown v. Walker, 161 U. S. 591,
161 U. S. 600
(1896).
[
Footnote 6]
1 Stat. 73, 88-89.
[
Footnote 7]
See Blair v. United States, supra, at
250 U. S. 281;
8 Wigmore,
supra, n 2,
§§ 2192, 2197.
[
Footnote 8]
See Murphy v. Waterfront Comm'n, 378 U. S.
52,
378 U. S. 55
(1964).
[
Footnote 9]
See Ullmann v. United States, 350 U.S. at
350 U. S. 426;
E. Griswold, The Fifth Amendment Today 7 (1955).
[
Footnote 10]
Murphy v. Waterfront Comm'n, supra, at
378 U. S. 94
(WHITE, J., Concurring);
McCarthy v. Arndstein,
266 U. S. 34,
266 U. S. 40
(1924);
United States v. Saline
Bank, 1 Pet. 100 (1828);
cf. Gardner v.
Broderick, 392 U. S. 273
(1968).
[
Footnote 11]
Hoffman v. United States, 341 U.
S. 479,
341 U. S. 486
(1951);
Blau v. United States, 340 U.
S. 159 (1950);
Mason v. United States,
244 U. S. 362,
244 U. S. 365
(1917).
[
Footnote 12]
See, e.g., Miranda v. Arizona, 384 U.
S. 436,
384 U. S.
443-444 (1966);
Boyd v. United States,
116 U. S. 616,
116 U. S. 635
(1886).
[
Footnote 13]
Soon after the privilege against compulsory self-incrimination
became firmly established in law, it was recognized that the
privilege did not apply when immunity, or "indemnity," in the
English usage, had been granted.
See L. Levy, Origins of
the Fifth Amendment 328, 495 (1968). Parliament enacted an immunity
statute in 1710 directed against illegal gambling, 9 Anne, c. 14,
§§ 3-4, which became the model for an identical immunity statute
enacted in 1774 by the Colonial Legislature of New York. Law of
Mar. 9, 1774, c. 1651, 5 Colonial Laws of New York 621, 623 (1894).
These statutes provided that the loser could sue the winner, who
was compelled to answer the loser's charges. After the winner
responded and returned his ill-gotten gains, he was
"acquitted, indemnified [immunized] and discharged from any
further or other Punishment, Forfeiture or Penalty, which he . . .
may have incurred by the playing for, and winning such Money. . .
."
9 Anne, c. 14, § 4 (1710); Law of Mar. 9, 1774, c. 1651, 5
Colonial Laws of New York, at 623.
Another notable instance of the early use of immunity
legislation is the 1725 impeachment trial of Lord Chancellor
Macclesfield. The Lord Chancellor was accused by the House of
Commons of the sale of public offices and appointments. In order to
compel the testimony of Masters in Chancery who had allegedly
purchased their offices from the Lord Chancellor, and who could
incriminate themselves by so testifying, Parliament enacted a
statute granting immunity to persons then holding office as Masters
in Chancery. Lord Chancellor Macclesfield's Trial, 16 How.St.Tr.
767, 1147 (1725).
See 8 Wigmore,
supra, n 2, § 2281, at 492.
See also
Bishop Atterbury's Trial, 16 How.St.Tr. 323, 604-605 (1723).
The legislatures in colonial Pennsylvania and New York enacted
immunity legislation in the 18th century.
See, e.g.,
Resolution of Jan. 6, 1758, in Votes and Proceedings of the House
of Representatives of the Province of Pennsylvania (1682-1776), 6
Pennsylvania Archives (8th series) 4679 (C. Hoban ed.1935); Law of
Mar. 24, 1772, c. 1542, 5 Colonial Laws of New York 351, 353-354;
Law of Mar. 9, 1774, c. 1651,
id. at 621, 623; Law of Mar.
9, 1774, c. 1655,
id. at 639, 641-642.
See
generally L. Levy, Origins of the Fifth Amendment 359,
384-386, 389, 402-403 (1968). Federal immunity statutes have
existed since 1857. Act of Jan. 24, 1857, 11 Stat. 155. For a
history of the various federal immunity statutes,
see
Comment, The Federal Witness Immunity Acts in Theory and Practice:
Treading the Constitutional Tightrope, 72 Yale L.J. 1568 (1963);
Wendel, Compulsory Immunity Legislation and the Fifth Amendment
Privilege: New Developments and New Confusion, 10 St.Louis U.L.Rev.
327 (1966); and National Commission on Reform of Federal Criminal
Laws, Working Papers, 1406-1411 (1970).
[
Footnote 14]
See, e.g., Resolution of Jan. 6, 1758, n. 13,
supra, 6 Pennsylvania Archives (8th series) 4679 (C. Hoban
ed.1935); Law of Mar. 24, 1772, c. 1542, 5 Colonial Laws of New
York 351, 354; Law of Mar. 9, 1774, c. 1655,
id. at 639,
642.
Bishop Atterbury's Trial, supra, for which the House
of Commons passed immunity legislation, was a prosecution for
treasonable conspiracy.
See id. at 604-605; 8 Wigmore,
supra, n 2, § 2281, at
492 n. 2.
Lord Chancellor Macclesfield's Trial, supra, for
which Parliament passed immunity legislation, was a prosecution for
political bribery involving the sale of public offices and
appointments.
See id. at 1147. The first federal immunity
statute was enacted to facilitate an investigation of charges of
corruption and vote buying in the House of Representatives.
See Comment,
n 13,
supra, 72 Yale L.J. at 1571.
[
Footnote 15]
See 8 Wigmore,
supra, n 2, § 2281, at 492. MR. JUSTICE WHITE noted in his
concurring opinion in
Murphy v. Waterfront Comm'n, 378
U.S. at
378 U. S. 92,
that immunity statutes
"have for more than a century been resorted to for the
investigation of many offenses, chiefly those whose proof and
punishment were otherwise impracticable, such as political bribery,
extortion, gambling, consumer frauds, liquor violations, commercial
larceny, and various forms of racketeering."
Id. at
378 U. S. 94-95.
See n 14,
supra.
[
Footnote 16]
See Comment,
n
13,
supra, 72 Yale L.J. at 1576.
[
Footnote 17]
For a listing of these statutes,
see National
Commission on Reform of Federal Criminal Laws, Working Papers,
1444-1445 (1970).
[
Footnote 18]
For a listing of these statutes,
see 8 Wigmore,
supra, n 2, § 2281, at
495 n. 11.
[
Footnote 19]
See, e.g., 8 J. Wigmore, Evidence § 2281, at 501 (3d
ed.1940); 8 Wigmore,
supra, n 2, § 2281, at 496.
[
Footnote 20]
See Hale v. Henkel, 201 U. S. 43,
201 U. S. 70
(1906);
Brown v. Walker, 161 U.S. at
161 U. S.
610.
[
Footnote 21]
This statement was made with specific reference to the
Compulsory Testimony Act of 1893, 27 Stat. 443, the model for
almost all federal immunity statutes prior to the enactment of the
statute under consideration in this case.
See Murphy v.
Waterfront Comm'n, 378 U.S. at
378 U. S. 95
(WHITE, J., concurring).
[
Footnote 22]
Accord, Gardner v. Broderick, 392 U.S. at
392 U. S. 276;
Murphy v. Waterfront Comm'n, supra; McCarthy v. Arndstein,
266 U.S. at
266 U. S. 42
(Brandeis, J.);
Heike v. United States, 227 U.
S. 131,
227 U. S. 142
(1913) (Holmes, J.).
[
Footnote 23]
For other provisions of the 1970 Act relative to immunity of
witnesses,
see 18 U.S.C. §§ 6001-6005.
[
Footnote 24]
See, e.g., Murphy v. Waterfront Comm'n, supra, at
378 U. S. 54,
378 U. S. 78;
Counselman v. Hitchcock, 142 U. S. 547,
142 U. S. 585
(1892).
[
Footnote 25]
See Piccirillo v. New York, 400 U.
S. 548 (1971).
[
Footnote 26]
15 Stat 37.
[
Footnote 27]
See Counselman v. Hitchcock, supra, at
142 U. S.
560.
[
Footnote 28]
In re Counselman, 44 F. 268 (CCND Ill. 1890).
[
Footnote 29]
Counselman v. Hitchcock, supra, at
142 U. S.
564.
[
Footnote 30]
Precisely, the Court held
"that legislation cannot abridge a constitutional privilege, and
that it cannot replace or supply [
sic] one, at least
unless it is so broad as to have the same extent in scope and
effect."
Id. at
142 U. S. 585.
See Murphy v. Waterfront Comm'n, supra, at
378 U. S. 54,
378 U. S.
78.
[
Footnote 31]
Counselman was decided Jan. 11, 1892. Senator Cullom introduced
the new bill on Jan. 27, 1892. 23 Cong.Rec. 573.
[
Footnote 32]
23 Cong.Rec. 6333.
[
Footnote 33]
Act of Feb. 11, 1893, 27 Stat. 443, repealed by the Organized
Crime Control Act of 1970, Pub.L. No. 91-452, § 245, 84 Stat.
931.
[
Footnote 34]
See the remarks of Senator Cullom, 23 Cong.Rec. 573,
6333, and Congressman Wise, who introduced the bill in the House.
24 Cong.Rec. 503.
See Shapiro v. United States,
335 U. S. 1,
335 U. S. 28-29
and n. 36 (1948).
[
Footnote 35]
Ullmann v. United States, 350 U.S. at
350 U. S. 438;
Shapiro v. United States, supra, at
335 U. S. 6. There
was one minor exception.
See Piccirillo v. New York, 400
U.S. at
400 U. S. 571
and n. 11 (BRENNAN, J., dissenting);
Arndstein v.
McCarthy, 254 U. S. 71,
254 U. S. 73
(1920).
[
Footnote 36]
The statute is a product of careful study and consideration by
the National Commission on Reform of Federal Criminal Laws, as well
as by Congress. The Commission recommended legislation to reform
the federal immunity laws. The recommendation served as the model
for this statute. In commenting on its proposal in a special report
to the President, the Commission said:
"We are satisfied that our substitution of immunity from use for
immunity from prosecution meets constitutional requirements for
overcoming the claim of privilege. Immunity from use is the only
consequence flowing from a violation of the individual's
constitutional right to be protected from unreasonable searches and
seizures, his constitutional right to counsel, and his
constitutional right not to be coerced into confessing. The
proposed immunity is thus of the same scope as that frequently,
even though unintentionally, conferred as the result of
constitutional violations by law enforcement officers."
Second Interim Report of the National Commission on Reform of
Federal Criminal Laws, Mar. 17, 1969, Working Papers of the
Commission, 1446 (1970). The Commission's recommendation was based
in large part on a comprehensive study of immunity and the relevant
decisions of this Court prepared for the Commission by Prof. Robert
G. Dixon, Jr., of the George Washington University Law Center, and
transmitted to the President with the recommendations of the
Commission.
See National Commission on Reform of Federal
Criminal Laws, Working Papers, 1405-1444 (1970).
[
Footnote 37]
See S.Rep. No. 91-617, pp. 51-56, 145 (1969); H.R.Rep.
No. 91-1549, p. 42 (1970).
[
Footnote 38]
Ullmann v. United States, 350 U.S. at
350 U. S.
438-439, quoting
Boyd v. United States, 116
U.S. at
116 U. S. 634.
See Knapp v. Schweitzer, 357 U. S. 371,
357 U. S. 380
(1958).
[
Footnote 39]
Cf. The Supreme Court, 1963 Term, 78 Harv.L.Rev. 179,
230 (1964). Language similar to the
Counselman dictum can
be found in
Brown v. Walker, 161 U.S. at
161 U. S.
594-595, and
Hale v. Henkel, 201 U.S. at
201 U. S. 67.
Brown and
Hale, however, involved statutes that
were clearly sufficient to supplant the privilege against
self-incrimination, as they provided full immunity from prosecution
"for or on account of any transaction, matter or thing, concerning
which he may testify, or produce evidence. . . ." 161 U.S. at
161 U. S. 594;
201 U.S. at
201 U. S. 66.
The same is true of
Smith v. United States, 337 U.
S. 137,
337 U. S. 141,
337 U. S. 146
(1949), and
United States v. Monia, 317 U.
S. 424,
317 U. S. 425,
428 (1943). In
Albertson v. Subversive Activities Control
Board, 382 U. S. 70
(1965), some of the
Counselman language urged upon us by
petitioners was again quoted. But
Albertson, like
Counselman, involved an immunity statute that was held
insufficient for failure to prohibit the use of evidence derived
from compelled admissions and the use of compelled admissions as an
"investigatory lead."
Id. at
382 U. S.
80.
In
Adams v. Maryland, 347 U. S. 179,
347 U. S. 182
(1954), and in
United States v. Murdock, 284 U.
S. 141,
284 U. S. 149
(1931), the
Counselman dictum was referred to as the
principle of
Counselman. The references were in the
context of ancillary points not essential to the decisions of the
Court. The
Adams Court did note, however, that the Fifth
Amendment privilege prohibits the "use" of compelled
self-incriminatory testimony. 347 U.S. at
347 U. S. 181.
In any event, the Court in
Ullmann v. United States, 350
U.S. at
350 U. S.
436-437, recognized that the rationale of
Counselman was that the
Counselman statute was
insufficient for failure to prohibit the use of evidence derived
from compelled testimony.
See also Arndstein v. McCarthy,
254 U.S. at
254 U. S. 73.
[
Footnote 40]
The Waterfront Commission of New York Harbor is a bi-state body
established under an interstate compact approved by Congress. 67
Stat. 541.
[
Footnote 41]
In re Waterfront Comm'n of N.Y. Harbor, 39 N.J. 436,
189 A.2d
36 (1963).
[
Footnote 42]
Reconsideration of the rule that the Fifth Amendment privilege
does not protect a witness in one jurisdiction against being
compelled to give testimony that could be used to convict him in
another jurisdiction was made necessary by the decision in
Malloy v. Hogan, 378 U. S. 1 (1964),
in which the Court held the Fifth Amendment privilege applicable to
the States through the Fourteenth Amendment.
Murphy v.
Waterfront Comm'n, 378 U.S. at
378 U. S.
57.
[
Footnote 43]
At this point, the Court added the following note:
"Once a defendant demonstrates that he has testified, under a
state grant of immunity, to matters related to the federal
prosecution, the federal authorities 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. If transactional immunity had been deemed to be the
"constitutional rule," there could be no federal prosecution.
[
Footnote 44]
See, e.g., California v. Byers, 402 U.
S. 424,
402 U. S. 442
n. 3 (1971) (Harlan, J., concurring in judgment);
United States
v. Freed, 401 U. S. 601,
401 U. S. 606
n. 11 (1971);
Piccirillo v. New York, 400 U.
S. 548 (1971);
Stevens v. Marks, 383 U.
S. 234,
383 U. S.
244-245 (1966).
[
Footnote 45]
E.g., Murphy v. Waterfront Comm'n, supra; Ullmann v. United
States, supra; Smith v. United States, 337 U.
S. 137 (1949);
United States v. Monia,
317 U. S. 424
(1943);
Hale v. Henkel, 201 U. S. 43
(1906);
Jack v. Kansas, 199 U. S. 372
(1905);
Brown v. Walker, 161 U. S. 591
(1896).
See also n
35,
supra.
[
Footnote 46]
E. Albertson v. Subversive Activities Control Board,
382 U.S. at
382 U. S. 80;
Arndstein v. McCarthy, 254 U.S. at
254 U. S. 73.
[
Footnote 47]
In
Malloy v. Hogan, 378 U.S. at
378 U. S. 10-11,
the Court held that the same standards would determine the extent
or scope of the privilege in state and in federal proceedings,
because the same substantive guarantee of the Bill of Rights is
involved. The
Murphy Court emphasized that the scope of
the privilege is the same in state and in federal proceedings.
Murphy v. Waterfront Comm'n, 378 U.S. at
378 U. S.
79.
[
Footnote 48]
Ibid.
[
Footnote 49]
As the Court noted in
Gardner v. Broderick, 392 U.S. at
392 U. S.
276,
"[a]nswers may be compelled regardless of the 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."
[
Footnote 50]
See, e.g., Albertson v. Subversive Activities Control
Board, 382 U.S. at
382 U. S.
80.
[
Footnote 51]
See Murphy v. Waterfront Comm'n, 378 U.S. at
378 U. S.
102-104 (WHITE, J., concurring).
[
Footnote 52]
Adams v. Maryland, 347 U.S. at
347 U. S. 181;
Bram v. United States, 168 U. S. 532,
168 U. S. 542
(1897).
[
Footnote 53]
As MR. JUSTICE WHITE, concurring in
Murphy, pointed
out:
"A coerced confession is as revealing of leads as testimony
given in exchange for immunity and indeed is excluded in part
because it is compelled incrimination in violation of the
privilege.
Malloy v. Hogan, [
378 U.S.
1,
378 U. S. 7-8];
Spano v. New
York, 360 U. S. 315;
Bram v.
United States, 168 U. S. 532."
378 U.S. at
378 U. S.
103.
[
Footnote 54]
Jackson v. Denno, 378 U. S. 368
(1964).
[
Footnote 55]
See supra at
406 U. S. 460;
Brief for the United States 37;
Cf. Chapman v. California,
386 U. S. 18
(1967).
[
Footnote 56]
Jackson v. Denno, supra.
MR. JUSTICE DOUGLAS, dissenting.
The Self-Incrimination Clause says: "No person . . . shall be
compelled in any criminal case to be a witness against himself." I
see no answer to the proposition that he is such a witness when
only "use" immunity is granted.
My views on the question of the scope of immunity that is
necessary to force a witness to give up his guarantee
Page 406 U. S. 463
against self-incrimination contained in the Fifth Amendment are
so well known,
see Ullmann v. United States, 350 U.
S. 422,
350 U. S. 440
(dissenting),
and Piccirillo v. New York, 400 U.
S. 548,
400 U. S. 549
(dissenting), that I need not write at length.
In
Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S. 586,
the Court adopted the transactional immunity test:
"In view of the constitutional provision, a statutory enactment,
to be valid, must afford absolute immunity against future
prosecution for the offense to which the question relates."
Id. at
142 U. S. 586.
In
Brown v. Walker, 161 U. S. 591, a
case involving another federal prosecution, the immunity statute
provided that the witness would be protected "on account of any
transaction . . . concerning which he may testify."
Id. at
161 U. S. 594.
The Court held that the immunity offered was coterminous with the
privilege, and that the witness could therefore be compelled to
testify, a ruling that made "transactional immunity" part of the
fabric of our constitutional law.
Ullmann v. United States,
supra, at
350 U. S.
438.
This Court, however, apparently believes that
Counselman and its progeny were overruled
sub
silentio in
Murphy v. Waterfront Comm'n, 378 U. S.
52.
Murphy involved state witnesses, granted
transactional immunity under state law, who refused to testify for
fear of subsequent federal prosecution. We held that the testimony
in question could be compelled, but that the Federal Government
would be barred from using any of the testimony, or its fruits, in
a subsequent federal prosecution.
Murphy overruled not
Counselman, but
Feldman v. United States, 322 U.
S. 487, which had held
"that one jurisdiction within our federal structure may compel a
witness to give testimony which could be used to convict him of a
crime in another jurisdiction."
Murphy v. Waterfront Comm'n, supra, at
378 U. S. 77.
But
Counselman,
Page 406 U. S. 464
as the
Murphy Court recognized, "said nothing about the
problem of incrimination under the law of another sovereign."
Id. at
378 U. S. 72.
That problem is one of federalism, as to require transactional
immunity between jurisdictions might
"deprive a state of the right to prosecute a violation of its
criminal law on the basis of another state's grant of immunity [a
result which] would be gravely in derogation of its sovereignty and
obstructive of its administration of justice."
United States ex rel. Catena v. Elias, 44 F.2d 40, 44
(CA3 1971). Moreover, as MR. JUSTICE BRENNAN has pointed out, the
threat of future prosecution
"substantial when a single jurisdiction both compels
incriminating testimony and brings a later prosecution, may fade
when the jurisdiction bringing the prosecution differs from the
jurisdiction that compelled the testimony. Concern over informal
and undetected exchange of information is also correspondingly less
when two different jurisdictions are involved."
Piccirillo v. New York, 400 U.S. at
400 U. S. 568
(dissenting).
None of these factors applies when the threat of prosecution is
from the jurisdiction seeking to compel the testimony, which is the
situation we faced in
Counselman, and which we face today.
The irrelevance of
Murphy to such a situation was made
clear in
Albertson v. Subversive Activities Control Board,
382 U. S. 70, in
which the Court struck down an immunity statute because it failed
to measure up to the standards set forth in
Counselman.
Inasmuch as no inter-jurisdictional problems presented themselves,
Murphy was not even cited. That is further proof that
Murphy was not thought significantly to
Page 406 U. S. 465
undercut
Counselman. [
Footnote 2/1]
See Stevens v. Marks,
383 U. S. 234,
383 U. S.
244-245;
id. at
383 U. S.
249-250 (Harlan, J., concurring and dissenting);
Mansfield, The
Albertson Case: Conflict Between the
Privilege Against Self-Incrimination and the Government's Need for
Information, 196 Sup.Ct.Rev. 103, 164.
If, as some have thought, the Bill of Rights contained only
"counsels of moderation" from which courts and legislatures could
deviate according to their conscience or discretion, then today's
contraction of the Self-Incrimination Clause of the Fifth Amendment
would be understandable. But that has not been true, starting with
Chief Justice Marshall's opinion in
United States v.
Burr,
Page 406 U. S. 466
25 F. Cas. 38 (No. 14692e) (CC Va.), where he ruled that the
reach of the Fifth Amendment was so broad as to make the privilege
applicable when there was a mere possibility of a criminal charge's
being made.
The Court said in
Hale v. Henkel, 201 U. S.
43,
201 U. S. 67,
that, "if the criminality has already been taken away, the
Amendment ceases to apply." In other words, the immunity granted is
adequate if it operates as a complete pardon for the offense.
Brown v. Walker, 161 U.S. at
161 U. S. 595.
That is the true measure of the Self-Incrimination Clause. As MR.
JUSTICE BRENNAN has stated: "[U]se immunity literally misses half
the point of the privilege, for it permits the compulsion without
removing the criminality."
Piccirillo v. New York, supra,
at
400 U. S. 567
(dissenting).
As MR. JUSTICE BRENNAN has also said:
"Transactional immunity . . . provides the individual with an
assurance that he is not testifying about matters for which he may
later be prosecuted. No question arises of tracing the use or
non-use of information gleaned from the witness' compelled
testimony. The sole question presented to a court is whether the
subsequent prosecution is related to the substance of the compelled
testimony. Both witness and government know precisely where they
stand. Respect for law is furthered when the individual knows his
position and is not left suspicious that a later prosecution was
actually the fruit of his compelled testimony."
400 U.S. at
400 U. S.
568-569 (dissenting).
When we allow the prosecution to offer only "use" immunity, we
allow it to grant far less than it has taken away. For while the
precise testimony that is compelled may not be used, leads from
that testimony may
Page 406 U. S. 467
be pursued and used to convict the witness. [
Footnote 2/2] My view is that the framers put it
beyond the power of Congress to compel anyone to confess his
crimes. The Self-Incrimination Clause creates, as I have said
before, "the federally protected right of silence," making it
unconstitutional to use a law "to pry open one's lips and make him
a witness against himself."
Ullmann v. United States, 350
U.S. at
350 U. S. 446
(dissenting). That is indeed one of the chief procedural guarantees
in our accusatorial system. Government acts in an ignoble way when
it stoops to the end which we authorize today.
I would adhere to
Counselman v. Hitchcock and hold that
this attempt to dilute the Self-Incrimination Clause is
unconstitutional.
[
Footnote 2/1]
In
Albertson v. Subversive Activities Control Board,
382 U. S. 70, the
Court was faced with a Fifth Amendment challenge to the Communist
registration provision of the Subversive Activities Control Act of
1950, 64 Stat. 987. We held that the provision violated the
prospective registrant's privilege against self-incrimination, and
that the registration provision was not saved by a so-called
"immunity statute" (§ 4(f)) which prohibited the introduction into
evidence in any criminal prosecution of the fact of registration
under the Act. The Court's analysis of this immunity provision
rested solely on
Counselman:
"In
Counselman v. Hitchcock, 142 U. S.
547, decided in 1892, the Court held"
"that no [immunity] 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 . . .
,"
"and that such a statute is valid only if it supplies 'a
complete protection from all the perils against which the
constitutional prohibition was designed to guard . . .' by
affording 'absolute immunity against future prosecution for the
offence to which the question relates.'
Id. at
142 U. S. 585-586.
Measured by these standards, the immunity granted by §
4(f) is not complete."
382 U.S. at
382 U. S. 80.
(Emphasis added.) Thus, the
Albertson Court, which could
have struck the statute by employing the test approved today, went
well beyond, and measured the statute solely against the more
restrictive standards of
Counselman.
[
Footnote 2/2]
As MR. JUSTICE MARSHALL points out,
post at
406 U. S. 469,
it is futile to expect that a ban on use or derivative use of
compelled testimony can be enforced.
It is also possible that use immunity might actually have an
adverse impact on the administration of justice, rather than
promote law enforcement. A witness might believe, with good reason,
that his "immunized" testimony will inevitably lead to a felony
conviction. Under such circumstances, rather than testify and aid
the investigation, the witness might decide he would be better off
remaining silent even if he is jailed for contempt.
MR. JUSTICE MARSHALL, dissenting.
Today the Court holds that the United States may compel a
witness to give incriminating testimony, and subsequently prosecute
him for crimes to which that testimony relates. I cannot believe
the Fifth Amendment permits that result.
See Piccirillo v. New
York, 400 U. S. 548,
400 U. S. 552
(1071) (BRENNAN, J., dissenting from dismissal of certiorari).
The Fifth Amendment gives a witness an absolute right to resist
interrogation, if the testimony sought would tend to incriminate
him. A grant of immunity
Page 406 U. S. 468
may strip the witness of the right to refuse to testify, but
only if it is broad enough to eliminate all possibility that the
testimony will in fact, operate to incriminate him. It must put him
in precisely the same position
vis-a-vis the government
that has compelled his testimony,
* as he would have
been in had he remained silent in reliance on the privilege.
Ullmann v. United States,
350 U. S. 422
(1956); McCarthy v. Arndstein,
266 U. S. 34
(1924); Hale v. Henkel,
201 U. S. 43
(1906); Brown v. Walker,
161 U. S. 591
(1896); Counselman v. Hitchcock,
142 U. S. 547
(1892).
The Court recognizes that an immunity statute must be tested by
that standard, that the relevant inquiry is whether it "leaves the
witness and the prosecutorial authorities in substantially the same
position as if the witness had claimed the Fifth Amendment
privilege."
Ante at 462. I assume, moreover, that in
theory that test would be met by a complete ban on the use of the
compelled testimony, including all derivative use, however remote
and indirect. But I cannot agree that a ban on use will in practice
be total, if it remains open for the government to convict the
witness on the basis of evidence derived from a legitimate
independent source. The Court asserts that the witness is
adequately protected by a rule imposing on the government a heavy
burden of proof if it would establish the independent character of
evidence to be used against the witness. But in light of the
inevitable uncertainties of the factfinding process, see Speiser v.
Randall,
357 U. S. 513,
357 U. S. 525
(1958), a greater margin of protection is required in order to
provide a reliable guarantee that the witness
Page 406 U. S. 469
is in exactly the same position as if he had not testified. That
margin can be provided only by immunity from prosecution for the
offenses to which the testimony relates,
i.e.,
transactional immunity.
I do not see how it can suffice merely to put the burden of
proof on the government. First, contrary to the Court's assertion,
the Court's rule does leave the witness "dependent for the
preservation of his rights upon the integrity and good faith of the
prosecuting authorities."
Ante at
406 U. S. 460.
For the information relevant to the question of taint is uniquely
within the knowledge of the prosecuting authorities. They alone are
in a position to trace the chains of information and investigation
that lead to the evidence to be used in a criminal prosecution. 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. Second, even 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 of 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.
Cf. Giglio v.
United States, 405 U. S. 150
(1972);
Santobello v. New York, 404 U.
S. 257 (1971). The Court today sets out a loose net to
trap tainted evidence and prevent its use against the witness, but
it accepts an intolerably great risk that tainted evidence will, in
fact, slip through that net.
Page 406 U. S. 470
In my view, the Court turns reason on its head when it compares
a statutory grant of immunity to the "immunity" that is
inadvertently conferred by an unconstitutional interrogation. The
exclusionary rule of evidence that applies in that situation has
nothing whatever to do with this case. Evidence obtained through a
coercive interrogation, like evidence obtained through an illegal
search, is excluded at trial because the Constitution prohibits
such methods of gathering evidence. The exclusionary rules provide
a partial and inadequate remedy to some victims of illegal police
conduct, and a similarly partial and inadequate deterrent to police
officers. An immunity statute, on the other hand, is much more
ambitious than any exclusionary rule. It does not merely attempt to
provide a remedy for past police misconduct, which never should
have occurred. An immunity statute operates in advance of the
event, and it authorizes -- even encourages -- interrogation that
would otherwise be prohibited by the Fifth Amendment. An immunity
statute thus differs from an exclusionary rule of evidence in at
least two critical respects.
First, because an immunity statute gives constitutional approval
to the resulting interrogation, the government is under an
obligation here to remove the danger of incrimination completely
and absolutely, whereas, in the case of the exclusionary rules, it
may be sufficient to shield the witness from the fruits of the
illegal search or interrogation in a partial and reasonably
adequate manner. For when illegal police conduct has occurred, the
exclusion of evidence does not purport to purge the conduct of its
unconstitutional character. The constitutional violation remains,
and may provide the basis for other relief, such as a civil action
for damages (
see 42 U.S.C. § 1983
and Bivens v. Six
Agents, 403 U. S. 388
(1971)), or a criminal prosecution of the responsible
Page 406 U. S. 471
officers (
see 18 U.S.C. §§ 241-242). The Constitution
does not authorize police officers to coerce confessions or to
invade privacy without cause, so long as no use is made of the
evidence they obtain. But this Court has held that the Constitution
does authorize the government to compel a witness to give
potentially incriminating testimony, so long as no incriminating
use is made of the resulting evidence. Before the government puts
its seal of approval on such an interrogation, it must provide an
absolutely reliable guarantee that it will not use the testimony in
any way at all in aid of prosecution of the witness. The only way
to provide that guarantee is to give the witness immunity from
prosecution for crimes to which his testimony relates.
Second, because an immunity statute operates in advance of the
interrogation, there is room to require a broad grant of
transactional immunity without imperiling large numbers of
otherwise valid convictions. An exclusionary rule comes into play
after the interrogation or search has occurred, and the decision to
question or to search is often made in haste, under pressure, by an
officer who is not a lawyer. If an unconstitutional interrogation
or search were held to create transactional immunity, that might
well be regarded as an excessively high price to pay for the
"constable's blunder." An immunity statute, on the other hand,
creates a framework in which the prosecuting attorney can make a
calm and reasoned decision whether to compel testimony and suffer
the resulting ban on prosecution, or to forgo the testimony.
For both these reasons, it is clear to me that an immunity
statute must be tested by a standard far more demanding than that
appropriate for an exclusionary rule fashioned to deal with past
constitutional violations. Measured by that standard, the statute
approved today by the Court fails miserably. I respectfully
dissent.
* This case does not, of course, involve the special
considerations that come into play when the prosecuting government
is different from the government that has compelled the testimony.
See Murphy v. Waterfront Comm'n, 378 U. S.
52 (1964).