MURPHY ET AL. v. WATERFRONT COMMISSION OF NEW YORK HARBOR.
No. 138.
Supreme Court of the United States
Argued March 5, 1964. — Decided June 15, 1964.
378 U.S. 52
William P. Sirignano argued the cause for respondent. With him on the brief was Irving Malchman.
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
We have held today that the
Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor2 concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminate them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. Notwithstanding this grant of immunity, they still refused to respond to the questions on the
Since a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination, Counselman v. Hitchcock, 142 U. S. 547, we must now decide the fundamental constitutional question of whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction. The answer to this question must depend, of course, on whether such an application of the privilege promotes or defeats its policies and purposes.
The privilege against self-incrimination “registers an important advance in the development of our liberty — ‘one of the great landmarks in mans struggle to make himself civilized.’ ” Ullmann v. United States, 350 U. S. 422, 426.4 It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,” 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life,” United States v. Grunewald, 233 F. 2d 556, 581-582 (Frank, J., dissenting), rev‘d, 353 U. S. 391; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty,” is often “a protection to the innocent.” Quinn v. United States, 349 U. S. 155, 162.
Most, if not all, of these policies and purposes are defeated when a witness “can be whipsawed into incriminating himself under both state and federal law even though” the constitutional privilege against self-incrimination is applicable to each. Cf. Knapp v. Schweitzer, 357 U. S. 371, 385 (dissenting opinion of MR. JUSTICE BLACK). This has become especially true in our age of
Our decision today in Malloy v. Hogan, supra, necessitates a reconsideration of this rule.6 Our review of the pertinent cases in this Court and of their English antecedents reveals that Murdock did not adequately consider the relevant authorities and has been significantly weakened by subsequent decisions of this Court, and, further, that the legal premises underlying Feldman and Knapp have since been rejected.
A. The English Cases Before the Adoption of the Constitution.
In 1749 the Court of Exchequer decided East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010. The defendant in that case refused to “discover” certain information in a proceeding in an English court on the ground that it might subject him to punishment in the courts of India. The court unanimously held that the privilege against self-incrimination protected a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction. The court stated the rule to be:
“that this court shall not oblige one to discover that, which, if he answers in the affirmative, will subject him to the punishment of a crime . . . and that he is punishable appears from the case of Omichund v. Barker, [1 Atk. 21.] as a jurisdiction is erected in Calcutta for criminal facts: where he may be sent to government and tried, though not punishable here; like the case of one who was concerned in a rape in Ireland, and sent over there by the government to be tried, although the court of B. R. here refused to do it . . . for the government may send persons to answer for a crime wherever committed, that he may not involve his country; and to prevent reprisals.” 1 Ves. sen., at 247, 27 Eng. Rep., at 1011.
In the following year, this rule was applied in a case involving separate systems of courts and law located within the same geographic area. The defendant in Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157, refused to “discover, whether she was lawfully married” to a certain individual, on the ground that if she admitted to the marriage she would be confessing to an act which, although legal under the common law, would render her
“This appears a very plain case, in which defendant may protect herself from making a discovery of her marriage; and I am afraid, if the court should over-rule such a plea, it would be setting up the oath ex officio; which then the parliament in the time of Charles I. would in vain have taken away, if the party might come into this court for it. The general rule is, that no one is bound to answer so as to subject himself to punishment, whether that punishment arises by the ecclesiastical law of the land.” 2 Ves. sen., at 244-245, 28 Eng. Rep., at 158.
B. The Saline Bank Case.
It was against this background of English case law that this Court in 1828 decided United States v. Saline Bank of Virginia, 1 Pet. 100. The Government, seeking to recover certain bank deposits, brought suit in the District Court against the bank and a number of its stockholders. The defendants resisted discovery of “any matters, whereby they may impeach or accuse themselves of any offence or crime, or be liable by the laws of the commonwealth of Virginia, to penalties and grievous fines . . . .” Id., at 102. The unanimous opinion of the Court, delivered by Chief Justice Marshall, reads as follows:
“This is a bill in equity for a discovery and relief. The defendants set up a plea in bar, alleging that the discovery would subject them to penalties under the statute of Virginia.
“The Court below decided in favour of the validity of the plea, and dismissed the bill.
“It is apparent that in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule
clearly is, that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. “The decree of the Court below is therefore affirmed.” Id., at 104.
This case squarely holds that the privilege against self-incrimination protects a witness in a federal court from being compelled to give testimony which could be used against him in a state court.
C. Subsequent Development of the English Rule.
In 1851, the English Court of Chancery decided King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116, a case which this Court in United States v. Murdock, 284 U. S. 141, erroneously cited as representing the settled “English rule” that a witness is not protected “against disclosing offenses in violation of the laws of another country.” Id., at 149. Defendants in that case resisted discovery of information, which, they asserted, might subject them to prosecution under the laws of Sicily. In denying their claim, the Vice Chancellor said:
“The rule relied on by the Defendants, is one which exists merely by virtue of our own municipal law, and must, I think, have reference, exclusively, to matters penal by that law: to matters as to which, if disclosed, the Judge would be able to say, as matter of law, whether it could or could not entail penal consequences.” 1 Sim. (N. S.), at 329, 61 Eng. Rep., at 128.
Two reasons were given in support of this statement: (1) “The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incurring penal consequences in a foreign country, may extend . . . ,” id., at 331, 61 Eng. Rep., at 128; and (2) the fact that “in such a case, in order to make the disclosure dangerous to the party who objects, it is essential that he
Within a few years, the pertinent part of King of the Two Sicilies was specifically overruled by the Court of Chancery Appeal in United States of America v. McRae, L. R. 3 Ch. App. 79 (1867), a case not mentioned by this Court in United States v. Murdock, supra. In McRae, the United States sued in an English court for an accounting and payment of moneys allegedly received by the defendant as agent for the Confederate States during the Civil War. The defendant refused to answer questions on the ground that to do so would subject him to penalties under the laws of the United States. The United States argued that the “protection from answering applies only where a person might expose himself to the peril of a penal proceeding in this country [England], and not to the case where the liability to penalty or forfeiture is incurred by the breach of the laws of
“I quite agree in the general principles stated by Lord Cranworth, and in their application to the particular case before him. . . . [The defendants there] did not furnish the least information what the foreign law was upon the subject, though it was necessary for the Judge to know this with certainty before he could say whether the acts done by the persons who objected to answer had rendered them amenable to punishment by that law or not. . . . [Moreover,] it was doubtful whether the Defendants would ever be within the reach of a prosecution, and their being so depended on their voluntary return to [Sicily].” L. R. 3 Ch. App., at 84-87.
In refusing to follow King of the Two Sicilies beyond its particular facts, the court said:
“But in giving judgment Lord Cranworth went beyond the particular case, and expressed his opinion that the rule upon which the Defendants relied to protect them from answering was one which existed merely by virtue of our own municipal law, and which must have reference exclusively to matters penal by that law. It was unnecessary to lay down so broad a proposition to support the judgment which he pronounced . . . . What would have been Lord Cranworth‘s opinion upon [the present] state of circumstances it is impossible for me to conjecture; but it is very different from that which was before his mind in that case, and I cannot feel that there is any judgment of his which ought to influence my decision upon the present occasion.” Id., at 85.
III. THE RECENT SUPREME COURT CASES.
In 1896, in Brown v. Walker, 161 U. S. 591, this Court, for the first time, sustained the constitutionality of a federal immunity statute. Appellant in that case argued, inter alia, that:
“while the witness is granted immunity from prosecution by the Federal government, he does not obtain such immunity against prosecution in the state courts.” Id., at 606.
The Court construed the applicable statute, however, to prevent prosecutions either in state or federal courts.8
That this dictum related solely to the “legal immunity” under the Due Process Clause of the
A few months after Ballmann, the Court decided Hale v. Henkel, 201 U. S. 43. Appellant had been held in contempt of a federal court for refusing to answer certain questions and produce certain documents. His refusal was based in part on the argument that the federal immunity statute did not protect him from state prosecution. The Government argued, on the authority of Brown v. Walker, supra, that the statute did protect him
“The question has been fully considered in England, and the conclusion reached by the courts of that country that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. Queen v. Boyes, 1 B. & S. 311; King of the Two Sicilies v. Willcox, 7 State Trials (N. S.), 1049, 1068; State v. March, 1 Jones (N. Car.), 526; State v. Thomas, 98 N. Car. 599.
“The case of United States v. Saline Bank, 1 Pet. 100, is not in conflict with this. That was a bill for discovery, filed by the United States against the cashier of the Saline Bank, in the District Court of the Virginia District, who pleaded that the emission of certain unlawful bills took place, within the State of Virginia, by the law whereof penalties were inflicted for such emissions. It was held that defendants were not bound to answer and subject themselves to those penalties. It is sufficient to say that the prosecution was under a state law which im-
posed the penalty, and that the Federal court was simply administering the state law, and no question arose as to a prosecution under another jurisdiction.” 201 U. S., at 69.
This dictum, subsequently relied on in United States v. Murdock, supra, was not well founded.
The settled English rule was exactly the opposite of that stated by the Court. The most recent authoritative announcement of the English rule had been that made in 1867 in United States of America v. McRae, supra, where the Court of Chancery Appeals held that where there is a real danger of prosecution in a foreign country, the case could not be distinguished “in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law.” Supra, at 63. The dictum from King of the Two Sicilies cited by the Court in Hale v. Henkel had been rejected in McRae. Moreover, the two factors relied on by the English court in King of the Two Sicilies were wholly inapplicable to federal-state problems in this country. The first — “The impossibility of knowing, as matter of law, to what cases the [danger of incrimination] may extend . . . ,” supra, at 60 — has no force in our country where the federal and state courts take judicial notice of each other‘s law. The second — that “in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated,” supra, at 60-61 — is equally inapplicable in our country where the witness is generally within “the jurisdiction” of the State under whose law he claims danger of incrimination, and where, if he is not, the State may demand his extradition. The second case relied on in Hale v. Henkel, supra — The Queen v. Boyes, supra — was irrelevant to the issue there presented. The Queen v. Boyes did not involve
Thus, the authorities relied on by the Court in Hale v. Henkel provided no support for the conclusion that under the
The weakness of the Hale v. Henkel dictum was immediately recognized both by lower federal courts12 and by this Court itself. In Vajtauer v. Commissioner of Immigration, 273 U. S. 103, decided in 1927 by a unanimous
“This conclusion makes it unnecessary for us to consider the extent to which the Fifth Amendment guarantees immunity from self-incrimination under state statutes or whether this case is to be controlled by Hale v. Henkel, 201 U. S. 43; Brown v. Walker, 161 U. S. 591, 608; compare United States v. Saline Bank, 1 Pet. 100; Ballmann v. Fagin, 200 U. S. 186, 195.” 273 U. S., at 113.
In a subsequent case, decided in 1933, this Court said that the question — whether “one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law” — was “specifically reserved in Vajtauer v. Commr of Immigration,” and was not “definitely settled” until 1931. United States v. Murdock, 290 U. S. 389, 396.
In 1931, the Court decided United States v. Murdock, 284 U. S. 141, the case principally relied on by respondent here. Appellee had been indicted for failing to supply certain information to federal revеnue agents. He claimed that his refusal had been justified because it rested on the fear of federal and state incrimination. The Government argued that the record supported only a claim of state, not federal, incrimination, and that the
This Court decided that appellee‘s refusal to answer rested solely on a fear of state prosecution, and then concluded, in one brief paragraph, that such a fear did not justify a refusal to answer questions put by federal officers.
The Court gave three reasons for this conclusion. The first was that:
“Investigations for federal purposes may not be prevented by matters depending upon state law. Constitution, Art. VI, § 2.” 284 U. S., at 149.
This argument, however, begs the critical question. No one would suggest that state law could prevent a proper federal investigation; the Court had already held that the Federal Government could, under the Supremacy Clause, grant immunity from state prosecution, and that, accordingly, state law could not prevent a proper federal investigation. The critical issue was whether the Federal Government, without granting immunity from state prosecution, could compel testimony which would incriminate under state law. The Courts first “reason” was not responsive tо this issue.
The second reason given by the Court was that:
“The English rule of evidence against compulsory self-incrimination, on which historically that con-
tained in the
As has been demonstrated, the cases cited were in one instance overruled and in the other inapposite, and the English rule was the opposite from that stated in this Court‘s opinion: The rule did “protect witnesses against disclosing offenses in violation of the laws of another country.” United States of America v. McRae, supra.
The third reason given by the Court in Murdock was that:
“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 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. Counselman v. Hitchcock, 142 U. S. 547. Brown v. Walker, 161 U. S. 591, 606. Jack v. Kansas, 199 U. S. 372, 381. Hale v. Henkel, 201 U. S. 43, 68.” 284 U. S., at 149.
This argument—that the rule in question had already been “established” by the past decisions of the Court—is not accurate. The first case cited by the Court—Counselman v. Hitchcock—said nothing about the problem of incrimination under the law of another sovereign. The second case—Brown v. Walker—merely held that the
“Not until this court pronounced judgment in United States v. Murdock, 284 U. S. 141, had it been definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law. The question was involved, but not decided, in Ballmann v. Fagin, 200 U. S. 186, 195, and specifically reserved in Vajtauer v. Comm‘r of Immigration, 273 U. S. 103, 113.” United States v. Murdock, 290 U. S. 389, 396.
Thus, neither the reasoning nor the authority relied on by the Court in United States v. Murdock, 284 U. S. 141, supports its conclusion that the
In 1944 the Court, in Feldman v. United States, 322 U. S. 487, was confronted with the situation where evidence compelled by a State under a grant of state immunity was “availed of by the [Federal] Government” and
“[T]he
Fourth andFifth Amendments , intertwined as they are, [express] supplementing phases of the same constitutional purpose . . . .” 322 U. S. 489-490.“[O]ne of the settled principles of our Constitution has been that these Amendments protect only against invasion of civil liberties by the [Federal] Government whose conduct they alone limit.” Id., at 490.
“And so, while evidence secured through unreasonable search and seizure by federal officials is inadmissible in a federal prosecution, Weeks v. United States, supra; . . . 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.” 322 U. S., at 492.
The Court concluded, therefore, by analogy to the then extant search and seizure rule, that evidence compelled by a state grant of immunity could be used by the Federal Government. But the legal foundation upon which that 4-to-3 decision rested no longer stands. Evidence illegally seized by state officials may not now be received in federal courts. In Elkins v. United States, 364 U. S. 206, the Court held, over the dissent of the writer of the Feldman decision, that “evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant‘s immunity from unreasonable searches and seizures under the
The relevant cases decided by this Court since Feldman fall into two categories. Those involving a federal immunity statute—exemplified by Adams v. Maryland, 347 U. S. 179—in which the Court suggested that the
In Adams v. Maryland, supra, petitioner had testified before a United States Senate Committee investigating crime, and his testimony had later been used to convict him of a state crime. A federal statute at that time provided that no testimony given by a witness in congressional inquiries “shall be used as evidence in any criminal proceeding against him in any court . . . .”
Knapp v. Schweitzer, 357 U. S. 371, involved a state contempt conviction for a witness’ refusal to answer questions, under a grant of state immunity, on the ground that his answers might subject him to prosecution under federal law. Petitioner claimed that “the
“It is plain that the [
Fifth Amendment ] can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole—although deeply valuable—purpose of theFifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth.” Id., at 380.
The Court has today rejected that rule, and with it, all the earlier cases resting on that rule.
The foregoing makes it clear that there is no continuing legal vitality to, or historical justification for, 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.
IV. CONCLUSIONS.
In light of the history, policies and purposes of the privilege against self-incrimination, we now accept as correct the construction given the privilege by the English courts17 and by Chief Justice Marshall and Justice Holmes. See United States v. Saline Bank of Virginia, supra; Ballmann v. Fagin, supra. We reject—as unsupported by history or policy—the deviation from that construction only recently adopted by this Court in United States v. Murdock, supra, and Feldman v. United States, supra. We hold that the constitutional privilege
We must now decide what effect this holding has on existing state immunity legislation. In Counselman v. Hitchcock, 142 U. S. 547, this Court considered a federal statute which provided that no “evidence obtained from a party or witness by means of a judicial proceeding . . . shall be given in evidence, or in any manner used against him . . . in any court of the United States . . . .” Id., at 560. Notwithstanding this statute, appellant, claiming his privilege against self-incrimination, refused to answer certain questions before a federal grand jury. The Court said “that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.” Id., at 585. Applying this principle to the facts of that case, the Court upheld appellant‘s refusal to answer on the ground 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 in such court . . . ,” id., 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.” Id., at 586.
Applying the holding of that case to our holdings today that the privilege against self-incrimination protects a state witness against federal prosecution, supra, at 77-78, and that “the same standards must determine whether [a witness‘] silencе in either a federal or state proceeding is justified,” Malloy v. Hogan, ante, at 11, we hold 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.18 This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.
It follows that petitioners here may now be compelled to answer the questions propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court‘s decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal
It is so ordered.
MR. JUSTICE BLACK concurs in the judgment and opinion of the Court for the reasons stated in that opinion and for the rеasons stated in Feldman v. United States, 322 U. S. 487, 494 (dissenting opinion), as well as Adamson v. California, 332 U. S. 46, 68 (dissenting opinion); Speiser v. Randall, 357 U. S. 513, 529 (concurring opinion); Bartkus v. Illinois, 359 U. S. 121, 150 (dissenting opinion); and Abbate v. United States, 359 U. S. 187, 201 (dissenting opinion).
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, concurring in the judgment.
Unless I wholly misapprehend the Court‘s opinion, its holding that testimony compelled in a state proceeding over a witness’ claim that such testimony will incriminate him may not be used against the witness in a federal criminal prosecution rests on constitutional grounds. On that basis, the contrary conclusion of Feldman v. United States, 322 U. S. 487, is overruled.
I believe that the constitutional holding of Feldman was correct, and would not overrule it. To the extent, however, that the decision in that case may have rested
I.
The Court‘s constitutional conclusions are thought by it to follow from what it terms the “policies” of the privilege against self-incrimination and a re-examination of various cases in this Court, particularly in the context of early English law. Almost entirely absent from the statement of “policies” is any reference to the particular problem of this case; at best, the statement suggests the set of values which are on one side of the issue. The discussion of precedent is scarcely more helpful. It intertwines decisions of this Court with decisions in English courts, which perhaps follow a different rule,1
and casts doubt for one reason or another on every American case which does not accord with the result now reached. When the skein is untangled, however, and the line of cases is spread out, two fаcts clearly emerge:
(1) With two early and somewhat doubtful exceptions, this Court has consistently rejected the proposition that
(2) Without any exception, in every case involving an immunity statute in which the Court has treated the question now before us, it has rejected the present majority‘s views.
The first of the two exceptional cases is United States v. Saline Bank of Virginia, 1 Pet. 100, decided in 1828; the entire opinion in that case is quoted in the majority opinion, ante, pp. 59-60. It is not clear whether that case has any bearing on the privilege against self-incrimination at all.2 The second case is Ballmann v. Fagin, 200 U. S. 186, decided in 1906. The statement that the appellant “was exonerated from disclosures which would have exposed him to the penalties of the state law,” id., at 195, was at best an alternative holding and probably not even that.3 Ballmann had based his refusal to testify before the Grand Jury solely on the possibility of incrimination under state law, id., at 193-194. Nevertheless, before considering the effect of state incrimination at all, the Court pointed out that the facts showed a likelihood
“Not impossibly Ballmann took this aspect of the matter for granted, as one which would be perceived by the court without his disagreeably emphasizing his own fears. But he did call attention to another less likely to be known. As we have said, he set forth that there were many proceedings on foot against him as party to a ‘bucket shop,’ and so subject to the criminal law of the State in which the grand jury was sitting. According to United States v. Saline Bank, 1 Peters, 100, he was exonerated from disclosures which would have exposed him to the penalties of the state law. See Jack v. Kansas, 199 U. S. 372, decided this term. One way or the other we are of opinion that Ballmann could not be required to produce his cash book if he set up that it would tend to criminate him.” Id., at 195-196.
Since the Jack case which the Court cited immediately after referring to Saline Bank had been decided just a few weeks before Ballmann and was contrary to Saline Bank, it is plain that the Court was not approving and applying the latter case. The explanation for the Court‘s inclusion of this ambiguous and inconclusive discussion of state incrimination is surely the fact that Ballmann had failed to set up the claim of federal incrimination on which the Court relied.
Neither of these two cases, therefore, “squarely holds,” ante, p. 60; see ante, p. 65, that a danger of incrimination under state law relieves a witness from testifying before federal authorities. More to the point, whatever force these two cases provide for the majority‘s position is wholly vitiated by subsequent cases, which are flatly contradictory to that position.
“We think the legal immunity is in regard to a prosecution in the same jurisdiction, and when that is fully given it is enough.” Id., at 382.
The present majority characterizes this statement as “cryptic dictum,” ante, p. 65. But, I submit, there is nothing cryptic about it. Nor is it dictum. The Court assumed for purposes of that case that the
The next case is Hale v. Henkel, 201 U. S. 43, decided one year later, shortly after Ballmann. The Court there rejected the appellant‘s argument that the federal immunity statute to be valid had to confer immunity from punishment under state law. It said:
“The further suggestion that the statute offers no immunity from prosecution in the state courts was also fully considered in Brown v. Walker and held to be no answer. The converse of this was also decided in Jack v. Kansas, 199 U. S. 372, namely, that the fact
that an immunity granted to a witness under a state statute would not prevent a prosecution of such witness for a violation of a Federal statute, did not invalidate such statute under the Fourteenth Amendment . It was held both by this court and by the Supreme Court of Kansas that the possibility that information given by the witness might be used under the Federal act did not operate as a reason for permitting the witness to refuse to answer, and that a danger so unsubstantial and remote did not impair the legal immunity. Indeed, if the argument were a sound one it might be carried still further and held to apply not only to state prosecutions within the same jurisdiction, but to prosecutions under the criminal laws of other States to which the witness might have subjected himself. The question has been fully considered in England, and the conclusion reached by the courts of that country that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. . . .” 201 U. S., at 68-69.4
In Vajtauer v. Commissioner of Immigration, 273 U. S. 103, which did not involve an immunity statute, the Court
“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 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.” Id., at 149.
The Court has not until now deviated from that definitive ruling. In later proceedings in the Murdock case, the Court said it was “definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law.” 290 U. S. 389, 396. The Court adhered to this view in Feldman, supra, where it established an equivalent rule allowing the use in a federal court of testimony given in a state court. The general principle was said to be one of “separateness in the operation of state and federal criminal laws and state and federal immunity provisions.” 322 U. S., at 493-494.5
In Adams v. Maryland, 347 U. S. 179, the Court held that a federal immunity statute,6 the language of which “could be no plainer,” id., at 181, prohibited the use in a state criminal trial of testimony given before a Senate Committee. Quite obviously, the remark in Adams that the
In Knapp v. Schweitzer, 357 U. S. 371, the Court again upheld the validity of state immunity statutes against the charge that they did not, as they could not, confer immunity from federal prosecution. The Court adhered to its position in Knapp, supra, in 1959, in Mills v. Louisiana, 360 U. S. 230.
This, then, is the “history” mustered by the Court in support of overruling the sound constitutional doctrine lying at the core of Feldman.
II.
Part I of this opinion shows, I believe, that the Court‘s analysis of prior cases hardly furnishes an adequate basis for a new departure in constitutional law. Even if the Court‘s analysis were sound, however, it would not support reversal of the Feldman rule on constitutional grounds.
If the Court were correct in asserting that the “separate sovereignty” theory of self-incrimination should be disсarded, that would, as the Court says, lead to the conclusion that “a state witness [is protected] against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.” Ante, p. 78. However, dealing strictly with the situation presented by this case, that conclusion does not in turn lead to a constitutional rule that the testimony of a state witness (or evidence to which his testimony leads) who is compelled to testify in state proceedings may not be used against him in a federal prosecution. Protection which the Due Process Clause affords against the States is quite obviously not any basis for a constitu-
The Court avoids this problem by mixing together the
The Court‘s reasons for overruling Feldman thus rest on an entirely new conception of the
“The sole—although deeply valuable—purpose of the
Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth.” Knapp v. Schweitzer, supra, at 380.
It is no service to our constitutional liberties to encumber the particular provisions which safeguard them with a gloss for which neither the text nor history provides any support.
Accordingly, I cannot acсept the majority‘s conclusion that a rule prohibiting federal authorities from using in aid of a federal prosecution incriminating testimony compelled in state proceedings is constitutionally required.
III.
I would, however, adopt such a rule in the exercise of our supervisory power over the administration of federal criminal justice. See McNabb v. United States, 318 U. S. 332, 340-341. The rule seems to me to follow from the Court‘s rejection, in the exercise of its supervisory power, of the “silver platter” doctrine as applied to the use in federal courts of evidence unconstitutionally seized by state officers. Elkins v. United States, 364 U. S. 206.
Since I reject the majority‘s argument that the “separate sovereignty” theory of self-incrimination is historically unfounded, I do not base my conclusion on the holding in Malloy, ante, that due process prohibits a State from compelling a witness to testify. My conclusion is based rather on the ground that such a rule is protective of the values which the federal privilege against self-incrimination expresses, without in any way interfering with the independent action of the States and the Federal Government in their respective spheres. Increasing interaction between the State and Federal Governments speaks strongly against permitting federal officials to make prosecutorial use of testimony which a State has compelled when that same testimony could not constitutionally have been compelled by the Federal Government and then used against the witness. Prohibiting such use in no way limits federal power to investigate and prosecute for federal crime, which power will be as full after a State has completed an investigation as before.7 This adjustment between state investigations of local crime
and federal prosecutions for federal crime seems particularly desirable in view of the increasing, productivе cooperation between federal and state authorities in the prevention of crime. By insulating intergovernmental cooperation from the danger of any encroachment on the federal privilege against self-incrimination, such a rule in the long run will probably make joint programs for crime prevention more effective.8
On this basis, I concur in the judgment of the Court.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.
The Court holds that the constitutional privilege against self-incrimination is nullified “when a witness ‘can be whipsawed into incriminating himself under both state and federal law even though’ the constitutional privilege against self-incrimination is applicable to each.” Ante, p. 55. Whether viewed as an exercise of this Court‘s supervisory power over the conduct of federal law enforcement officials or a constitutional rule necessary for meaningful enforcement of the privilege, this holding requires that compelled incriminating testimony given in a state proceeding not be used in any manner by federal officials in connection with a federal criminal prosecution. Since these petitioners declined to answer in the belief that their very testimony as well as evidence derived from it could be used by federal authorities in a criminal prosecution against them, they should be afforded an opportunity to purge themselves of the civil contempt convictions by answering the questions. Cf. Raley v. Ohio, 360 U. S. 423.
In reaching its result the Court does not accept the far-reaching and in my view wholly unnecessary constitu-
I.
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
“As the combination or conspiracies provided against by the Sherman Anti Trust Act can ordinarily be proved only by the testimony of parties thereto, in the person of their agents or employés, the privilege claimed would practically nullify the whole act of Congress. Of what use would it be for the legislature to declare these combinations unlawful if the judicial power may close the door of access to every available source of information upon the subject?” Id., at 70.
And only recently the Court declared that immunity statutes have “become part of our constitutional fabric . . . included ‘. . . in virtually all of the major regulatory enactments of the Federal Government,’ ” and “the States . . . have passed numerous statutes compelling testimony in exchange for immunity in the form either of complete amnesty or of prohibition of the use of the compelled testimony.” Ullmann v. United States, 350 U. S. 422, 438.
It is not without significance that there were two ostensibly inconsistent lines of cases in this Court regarding the external reach of the privileges in respect to the laws of another jurisdiction. In the cases involving refusals to answer questions in a federal grand jury or discovery proceedings on the ground of incrimination under state law, absent any immunity statute, the Court suggested that the Fifth Amendment privilege protected such answers, United States v. Saline Bank, 1 Pet. 100; Ballmann v. Fagin, 200 U. S. 186, while in the cases involving refusals to answer after immunity was conferred, the Court indicated that immunity in regard to a prosecution
To answer that the underlying policy of the privilege subordinates the law enforcement function to the privilege of an individual will not do. For where there is only one government involved, be it state or federal, not only is the danger of prosecution more imminent and indeed the likely purpose of the investigation to facilitate prosecution and conviction, but that authority has the choice of exchanging immunity for the needed testimony. To transform possible federal prosecution into a source of
Nor will it do to say that the Congress could reinstate state power by authorizing state officials to confer absolute immunity from federal prosecutions. Congress has established highly complicated procedures, requiring the approval of the Attorney General, before a limited group of federаl officials may grant immunity from federal prosecutions. E. g.,
II.
Neither the conflict between state and federal interests nor the consequent enthronement of federal agencies as the only law enforcement authorities with effective power to compel testimony is necessary to give full effect to a privilege against self-incrimination whose external reach embraces federal as well as state law. The approach need not and, in light of the above considerations, should not be in terms of the State‘s power to compel the testimony rather than the use to which such testimony can be put. It is unquestioned that an immunity statute, to be valid, must be coextensive with the privilege which it displaces, but it need not be broader. Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 161 U. S. 591; Hale v. Henkel, 201 U. S. 43. If the compelled incriminating testimony in a state proceeding cannot be put to any use whatsoever by federal officials, quite obviously the witness’ privilege against self-incrimination is not infringed. For the privilege does not convey an absolute right to remain silent. It protects a witness from being compelled to furnish evidence that could result in his being subjected to a criminal sanction, Hoffman v. United States, 341 U. S. 479; Mason v. United States, 244 U. S. 362, if, but only if, after the disclosure the witness will be in greater danger of prosecution and conviction.
It is argued that a rule only forbidding use of compelled testimony does not afford absolute protection against the possibility of a federal prosecution based in part on the compelled testimony. It is said that absent any deliberate attempt by federal officials to utilize the testimony the very identifiсation and testimony of the witness in the state proceedings, perhaps in the newspapers, may
In the absence of any misconduct or collusion by federal officials, whatever increase there is, if any, in the likelihood of federal prosecution following the witness’ appearance before a state grand jury or agency results from the inferences drawn from the invocation of the privilege to specific questions on the ground that they are incriminating under federal law and not from the fact the witness has testified in what is frequently an in camera proceeding under a grant of immunity. Whether in camera or not, the testimony itself is hardly reported in newspapers and the transcripts and records of the state proceedings are not part of the files of the Federal Government. Access and use require misconduct and collusion, a matter quite susceptible of proof. But this is quibbling, since the very fact that a witness is called in a state crime investigation is likely to be based upon knowledge, or at least a suspicion based on some information, that the witness is implicated in illegal activities, which knowledge and information are probably available to federal authorities.
The danger that a defendant may not be able to establish that other evidence was obtained through the unlawful use by federal officials of inadmissible compelled testimony is insubstantial. The privilege protects against real dangers, not remote and speculative possibilities. Brown v. Walker, 161 U. S. 591, 599-600; Heike v. United States, 227 U. S. 131; Mason v. United States, 244 U. S. 362. First, one might just as well argue that the Constitution requires absolute immunity from prosecution wherever
Counselman v. Hitchcock, 142 U. S. 547, does not require that absolute immunity from state prosecution be conferred on a federal witness and the Court has declined on many occasions to so read it, the limitation of the privilege to one sovereign rationale aside, Brown v. Walker, 161 U. S. 591; Adams v. Maryland, 347 U. S. 179; Ullmann v. United States, 350 U. S. 422; Reina v. United States, 364 U. S. 507.6 It does not therefore re-
The Constitution does not require that immunity go so far as to protect against all prosecutions to which the testimony relates, including prosecutions of another government, whether or not there is any causal connection between the disclosure and the prosecution or evidence offered at trial. In my view it is possible for a federal prosecution to be based on untainted evidence after a grant of federal immunity in exchange for testimony in a federal criminal investigation. Likewise it is possible that information gathered by a state government which has an important but wholly separate purpose in conducting the investigation and no interest in any federal prosecution will not in any manner be used in subsequent federal proceedings, at least “while this Court sits” to review invalid convictions. Panhandle Oil Co. v. Knox, 277 U. S. 218, at 223 (Holmes, J., dissenting). It is precisely this possibility of a prosecution based on untainted evidence that we must recognize. For if it is meaningful
“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.” Feldman v. United States, 322 U. S. 487, 500 (BLACK, J., dissenting). I believe the State may compel testimony incriminating under federal law, but the Federal Government may not use such testimony or its fruits in a federal criminal proceeding. Immunity must be as broad as, but not harmfully and wastefully broader than, the privilege against self-incrimination.
Notes
In King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116 (1851), the Vice-Chancellor had said that “the rule of protection [against self-incrimination] is confined to what may tend to subject a party to penalties by our own laws . . . .” 1 Sim. (N. S.), at 331, 61 Eng. Rep., at 128 (emphasis added). The Lord Chancellor said in McRae, supra, that King of the Two Sicilies had been “most correctly decided,” L. R., 3 Ch. App., at 85, but that the general rule there laid down was unnecessarily broad. He declined to apply the rule in McRae on the ground that “the presumed ignorance of the Judge as to foreign law . . . [had been] completely removed by the admitted statements upon the pleadings, in which the exact nature of the penalty or forfeiture incurred by the party objecting to answer is precisely stated . . . ,” L. R., 3 Ch. App., at 85, and the further ground, noted above, that the property subject to a forfeiture was “within the power of the United States,” id., at 87.
The other two English cases which the majority cites in this connection were decided more than 100 years earlier than King of the Two Sicilies. Moreover, both cases involved disclosures which would have been incriminating under a separate system of laws operating within the same legislative sovereignty. East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749); Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157 (Ch. 1750). In King of the Two Sicilies, which involved the laws of another sovereign, the Vice-Chancellor observed that there was an “absence of all authority on the point” raised before him. 1 Sim. (N. S.), at 331, 61 Eng. Rep., at 128.
There is little agreement among the authorities on the effect of these cases. See Grant, Federalism and Self Incrimination: Common Law and British Empire Comparisons, 5 U. C. L. A. L. Rev. 1-8; 8 Wigmore, Evidence (3d ed. 1940), § 2258, n. 3; Kroner, Self Incrimination: The External Reach of the Privilege, 60 Col. L. Rev. 816, 820, n. 26; McNaughton, Self-Incrimination Under Foreign Law, 45 Va. L. Rev. 1299, 1302. The power and corresponding duty are recognized in the Sixth Amendment‘s commands that defendants be confronted with witnesses and that they have the right to subpoena witnesses on their own behalf. The duty was recognized by the first Congress in the Judiciary Act of 1789, which made provision for the compulsion of attendance of witnesses in the federal courts. 1 Stat. 73, 88 (1789). See also Lilienthal, The Power of Governmental Agencies to Compel Testimony, 39 Harv. L. Rev. 694-695 (1926); 8 Wigmore, Evidence, §§ 2190-2193 (McNaughton rev., 1961).
That this case has meant different things to different people is evidenced by the opinion in Hale v. Henkel, 201 U. S. 43, in which the Court distinguished Saline Bank, presumably inadequately, on the ground that in it “the Federal court was simply administering the state law, and no question arose as to a prosecution under another jurisdiction.” 201 U. S., at 69. For a listing of Federal Witness Immunity Acts see Comment, 72 Yale L. J. 1568, 1611-1612; the state acts may be found in 8 Wigmore, Evidence, § 2281, n. 11 (McNaughton rev., 1961).
The Senate Crime Committee stated in its third interim report: “Any program for controlling organized crime must take into account the fundamental nature of our governmental system. The enforcement of the criminal law is primarily a State and local responsibility.” S. Rep. No. 307, 82d Cong., 1st Sess., 5 (1951).
Attorney General Mitchell commented: “Experience has shown that when Congress enacts criminal legislation of this type [dealing with local crime] the tendency is for the State authorities to cease their efforts toward punishing the offenders and to leave it to the Federal authorities and the Federal Courts. That has been the experience under the Dyer Act.” 72 Cong. Rec. 6214 (1930).
National enactments which touch upon these areas are not designed directly to suppress activities illegal under state law but to assist state enforcement agencies in the administration of their own statutes. See
In Jack, supra, the Court described Brown as follows:
“In the subsequent case of Brown v. Walker, 161 U. S. 591, the statute there involved was held to afford complete immunity to the witness, and he was therefore obliged to answer the questions that were put to him, although they might tend to incriminate him. In that case it was contended, on the part of the witness, that the statute did not grant him immunity against prosecutions in the state courts, although it granted him full immunity from prosecution by the Federal Government. This contention was held to be without merit. While it was asserted that the law of Congress was supreme, and that judges and courts in every State were bound thereby, and that therefоre the statute granting immunity would probably operate in the state as well as in the Federal courts, yet still, and aside from that view, it was said that while there might be a bare possibility that a witness might be subjected to the criminal laws of some other sovereignty, it was not a real and probable danger, but was so improbable that it needed not to be taken into account.” 199 U. S., at 381. (Emphasis added.)
Brown is cited for the proposition 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,” in United States v. Murdock, 284 U. S. 141, 149. And see Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113.
The majority is incorrect when it states, ante, p. 67, that the Court in Hale, relying on King of the Two Sicilies, supra, disregarded a “settled English rule” contrary to its own conclusion. See note 1, supra. The debates on the bill leading to the statute which granted a congressional committee the power to confer immunity well reveal the concern over immunization from federal prosecution without the express approval of the Attorney General in each case. 99 Cong. Rec. 4737-4740, 8342-8343; H. R. Rep. No. 2606, 83d Cong., 2d Sess. (1954). See Brownell, Immunity From Prosecution Versus Privilege Against Self-Incrimination, 28 Tul. L. Rev. 1 (1953):
“[I]f any measure is to be enacted permitting the granting of immunity to witnesses before either House of Congress, or its committees, it should vest the Attorney General, or the Attorney General acting with the concurrence of appropriate members of Congress, with the authority to grant such immunity, and if the testimony is sought for a court or grand jury that the Attorney General alone be authorized to grant the immunity.” (Remarks of Attorney General Brownell.) Id., at 19.
Congress adopted this view in recent immunity statutes.
“is rational only if the policy of the privilege is assumed to be to excuse the witness from the unpleasantness, the indignity, the ‘unnatural’ conduct of denouncing himself. [But] the policy of the privilege is not this. The policy of the privilege is to regulate a particular government-governed relation — first, to help prevent inhumane treatment of persons from whom information is desired and, second, to satisfy popular sentiment that, when powerful and impersonal government arrays its forces against solitary governed, it would be a violation of the individual‘s ‘sovereignty’ and less than fair for the government to be permitted to conscript the knowledge of the governed to its aid. Where the crime is a foreign crime, any motive to inflict brutality upon a person because of the incriminating nature of the disclosure — any ‘conviction hunger’ as such — is absent. And the sentiments relating to the rules of war between government and governed do not apply where the two are not at war. . . .
“Thus, reasoning from its rationales, the privilege should not apply no matter how incriminating is the disclosure under foreign law and no matter how probable is prosecution by the foreign sovereignty. This is so whether the relevant two sovereignties are different nations, different states, or different sovereignties (such as federal and state) with jurisdiction over the same geographical area.” 8 Wigmore, Evidence (McNaughton rev., 1961), 345.
As noted in the text, however, the privilege against self-incrimination represents many fundamental values and aspirations. It is “an expression of the moral striving of the community. . . . a reflection of our common conscience . . . .” Malloy v. Hogan, ante, p. 9, n. 7, quoting Griswold, The Fifth Amendment Today (1955), 73. That is why it is regarded as so fundamental a part of our constitutional fabric, despite the fact that “the law and the lawyers . . . have never made up their minds just what it is supposed to do or just whom it is intended to protect.” Kalven, Invoking the Fifth Amendment — Some Legal and Impractical Considerations, 9 Bull. Atomic Sci. 181, 182. It will not do, therefore, to assign one isolated policy to the privilege, and then to argue that since “the” policy may not be furthered measurably by applying the privilege across state-federal lines, it follows that the privilege should not be so applied.
This was the principle underlying the decision in Feldman rather than the so-called ”Feldman reasoning,” ante, p. 74, which, as described by the majority, consists of phrases plucked from separate paragraphs appearing on four different pages of the reported opinion, see Feldman, supra, at 489-492. The Court referred to the “silver platter” doctrine only to illustrate a related principle then applicable in the area of search-and-seizure. See id., at 492.The majority is, however, correct in stating that the decision in Elkins v. United States, 364 U. S. 206, discarding the “silver platter” doctrine has an important bearing on this case. See infra, p. 91. Feldman v. United States, 322 U. S. 487, allowed the use of testimony compelled in exchange for a grant of state immunity to secure a conviction for a federal offense. I think the Court in Feldman erred in its assumption that an effective exclusionary rule would allow the States to determine on the basis of local policy which offenders should be immune from federal prosecution. The Federal Government can prosecute and convict persons who have received immunity for testimony in a state investigation. But it must do so without the assistance of the compelled incriminatory testimony.
That case also relied on the doctrine since repudiated in Elkins v. United States, 364 U. S. 206, that evidence illegally seized by state officials is admissible in federal courts.
Neither Congress nor the States have read Counselman to mean that the Constitution requires absolute immunity from prosecution. There are numerous statutes providing for immunity from use, not prosecution, in exchange for incriminatory testimony. E. g., 30 Stat. 548 (1898),
The effect of the rule petitioners urge would be to hold the above and numerous other statutes barring use but not prosecution unconstitutional.
Speculation that federal agents may first have “gotten wind” of a federal crime by a witness’ testimony in state proceedings would not be a basis for barring federal prosecution, unaided by the state testimony. As I understand the rule announced today, albeit resting on premises which I think are unsound, it is a prohibition against the use of state-compelled incriminating evidence or the “fruits” directly attributable thereto in a federal prosecution.“that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things — not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. . . .
“Now, in the present case, no one seriously supposes that the witness runs the slightest risk of an impeachment . . . . No instance of such a proceeding in the unhappily too numerous cases of bribery which have engaged the attention of the House of Commons has ever occurred, or, so far as we are aware, has ever been thought of.” Id., at 330-331.
“But even granting that there were still a bare possibility that by his disclosure he might be subjected to the criminal laws of some other sovereignty, that, as Chief Justice Cockburn said in The Queen v. Boyes, 1 B. & S. 311, in reply to the argument that the witness was not protected by his pardon against an impeachment by the House of Commons, is not a real and probable danger, with reference to the ordinary operations of the law in the ordinary courts, but ‘a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.’ Such dangers it was never the object of the provision to obviate.” 161 U. S., at 608. See note 7, supra.
The lower federal courts were also following the English rule that a refusal to answer questions could legitimately be based on the danger of incrimination in another jurisdiction. In the case of In re Graham, 10 Fed. Cas. 913 (No. 5,659), for example, the witness refused to answer questions asked by a federal official on the ground that answers to such questions might expose “him to a criminal prosecution under the laws of the state of New York.” Id., at 914. Judge Blatchford held that the witness was “privileged from answering the questions.” Ibid. In the case of In re Hess, 134 F. 109, decided in 1905, where a bankrupt refused to answer certain questions on the ground that they might tend to incriminate him under state law, the court said:
“Section 860 of the Revised Statutes only prohibits the use of evidence that may be obtained from the bankrupt‘s books in prosecutions in the federal courts. There is nothing in this section which extends that immunity to the use of such evidence in the state courts, and there is nothing to prevent the trustee from making use of the bankrupt‘s books in a criminal prosecution against him instituted in the state courts. Obviously, therefore, if section 7, cl. 9, of the bankrupt act, does not protect him against the use of the evidence which he alleges is contained in his books, of an incriminating nature, in either the state or federal courts, and section 860 of the Revised Statutes extends the immunity only to federal courts, and not to state courts, it is plain that whatever incriminating evidence the books may contain could be used without restriction in the state courts for the purpose of convicting him of any crime for which he might be indicted there, and, in consequence of this danger to him, the plea of his constitutional privilege must prevail.” Id., at 112.
Also see, e. g., In re Koch, 14 Fed. Cas. 832 (No. 7,916); In re Feldstein, 103 F. 269; In re Henschel, 7 Am. Bankr. R. 207; In re Kanter, 117 F. 356; In re Hooks Smelting Co., 138 F. 954, 146 F. 336.
The question whether federally compelled incriminating testimony could be used in a state prosecution is not involved in this case and would, of course, present wholly different cоnsiderations.The cited authority does not, however, support the argument “that Saline Bank stands for no constitutional principle whatever.” That case was cited by Story, intermingled with more than a dozen other cases, in a footnote to the following statement: “Courts of Equity . . . will not compel a discovery in aid of a criminal prosecution . . . for it is against the genius of the Common Law to compel a party to accuse himself; and it is against the general principles of Equity to aid in the enforcement of penalties or forfeitures.” (Emphasis added.) This statement suggests that the common-law privilege and the equitable rule are so intermeshed that it serves no useful purpose to attempt to ascertain whether a given application by a Court of Equity rested on the former or the latter.