KASTIGAR ET AL. v. UNITED STATES
No. 70-117
Supreme Court of the United States
Argued January 11, 1972—Decided May 22, 1972
406 U.S. 441
Hugh R. Manes argued the cause and filed briefs for petitioners.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Assistant Attorney General Rehnquist, Jerome M. Feit, and Sidney M. Glazer.
Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Fred Okrand, A. L. Wirin, and Laurence R. Sperber for the American Civil Liberties Union et al.; by Benjamin Dreyfus for the National Lawyers Guild; and by Morton Stavis and Arthur Kinoy for the Center for Constitutional Rights.
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
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.1 The Court of
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.2 The power with respect to courts was established by statute in England as early as 1562,3 and Lord Bacon observed in 1612 that all subjects owed the King their “knowledge and discovery.”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 1742.5 The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amend-
“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,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,8 and marks an important advance in the development of our liberty.9 It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory;10 and it
Immunity statutes, which have historical roots deep in Anglo-American jurisprudence,13 are not incompatible
II
III
Petitioners’ second contention is that the scope of immunity provided by the federal witness immunity statute,
“the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information
directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”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.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, 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.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 re-enactment of the Immunity Act of 1868,26 provided that no “evidence obtained from a party or witness by means of a judicial
“We are clearly of opinion that no statute which leaves the party or witness subject to prosecution
after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. [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 585-586.
Sixteen days after the Counselman decision, a new immunity bill was introduced by Senator Cullom,31 who urged that enforcement of the Interstate Commerce Act would be impossible in the absence of an effective immunity statute.32 The bill, which became the Compulsory Testimony Act of 1893,33 was drafted specifically to meet the broad language in Counselman set forth above.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 .
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.’ ”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
“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 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 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 437. (Emphasis supplied.)
See also Arndstein v. McCarthy, 254 U. S. 71, 73 (1920). The broad language in Counselman relied upon by peti-
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 im-
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.42 The Court held that the privilege protects state witnesses against incrimination under federal as well as state law, and federal witnesses against incrim-
“[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.”43 378 U. S., at 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
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 pro-
“[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,”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
“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 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.
This is very substantial protection,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
The statutory proscription is analogous to the
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
Affirmed.
MR. JUSTICE BRENNAN and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
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 guar-
In Counselman v. Hitchcock, 142 U. S. 547, 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 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 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 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 77. But Counselman, as the Murphy Court recognized, “said nothing about the problem of incrimination under the law of another sovereign.” Id., at 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, 449 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 568 (dissenting).
None of these factors apply 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 interjurisdictional problems presented themselves, Murphy was not even cited. That is further proof that Murphy was not thought significantly to
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
The Court said in Hale v. Henkel, 201 U. S. 43, 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 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 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 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
I would adhere to Counselman v. Hitchcock and hold that this attempt to dilute the Self-Incrimination Clause is unconstitutional.
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
The
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
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 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.
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
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.