Pillsbury Co. v. Conboy

CONBOY CO. PILLSBURY et al. January 11, 1982 Decided Argued October

No. 81-825. Powell, J., Court, opinion BURGER, delivered the J., which C. White, Marshall, Rehnquist, JJ., joined. and Marshall, J., and concurring opinion, post, p. J., post, p. 271, Brennan, filed a 264. and post, p. Blackmun, J., opinions concurring judgment. filed in the Stevens, J., dissenting O’Connor, J., filed opinion, joined, a in which post, p. 282.

Francis J. McConnell argued the cause for petitioners. Ruberry. the briefs was Edward F. him on With Cojfield Michael W. argued the cause for respondent. Flynn* With him on the brief was Kevin M. delivered the of the Court. opinion

Justice Powell Pursuant to the federal use provisions, U. S. C. §§6001-6005, a United States re- Attorney may quest an from order a federal court a witness to compelling even though has asserted his self- privilege against incrimination. Section 6002 provides, however, that “no tes- or other timony (or information compelled under the order any information directly testi- indirectly derived such mony information) or other be used the witness in any criminal case . . .”. The issue in this case presented is whether a deponent’s civil deposition testimony, repeating *Jerry G. Hill Ghiselli, Jr., Frank V. Philip for L. Bar- filed brief num et al. as amici curiae urging affirmance. Baker, Harold F. Wiseman, Alan and Ann I. Killilea filed a brief Corp. Mead as amicus curiae. testimony, tracking closely verbatim or “testimony” over can is immunized privilege. of his assertion valid t—I Conboy of a de- executive Respondent a former John Litigation, Corrugated Antitrust Container in In re fendant (SD Tex.). January United States D. L. 310 M. Conboy attorneys follow- Department interviewed of Justice Conboy ap- subsequently immunity. ing promise of use price-fixing investigating grand jury activi- peared before granted § formal pursuant was C. to 18 U. S. and, ties testimony. immunity for his use companies, Following of several indictment criminal the filed various United actions were numerous civil antitrust consolidated for Those actions were District States discovery Courts. of for the Southern District District Court corrugated purchasers con- here are of Texas. Petitioners proceedings opt out of class-action tainers who elected pursue manufacturers. of action and their own causes portions the immunized The Court ordered that District grand jury of certain and Government interview Conboy, including made available witnesses, lawyers opt-outs.1 for the class and subpoena for the Court

Pursuant issued the District Chicago Conboy appeared Northern District of Illinois, deposition petitioners’ counsel he, counsel, at which his transcripts copies testimony. The had his immunized deposition follow that all could were marked as exhibits so questioning fell into the fol- intended The examination. transcript; pattern: lowing question read from was (i. rephrased transcript e., then answer was to include 1 materials propriety grand jury The of the release of District Court's parties the civil is not before the Court. finally, Conboy if . . was asked

“Is the fact that it not grand testified]” in immunized his interview and had “so Conboy jury ques- refused to answer each examination.2 privilege against asserting his Fifth Amendment self- tion, incrimination. granted petitioners’ compel Court motion to District

Conboy questions.3 Conboy When to answer continued privilege, the Court him to claim his District held in con- stayed tempt, pending appeal. panel A but its order Appeals for the Court Seventh Circuit affirmed the con- “[bjecause holding tempt questions order, that, asked in deposition closely were taken verbatim from or tracked Conboy’s transcript grand jury testimony, we believe deposition answers at the would be ‘derived from’ the [testimony] and therefore unavailable for any subsequent prosecution.” use in In re Corru- gated Litigation, Appeal Conboy, Container Antitrust (1981). F. 2d rehearing Appeals

On en banc, Court of reversed (1981). District Court. F. 2d 1145 It first determined Conboy’salleged fear of was more than “fan- Conboy ciful,” id., 1152,and that therefore was entitled to assert his Fifth unless his 2 example An of three-question pattern is as follows: “Q. you price Who did have communications with at Alton Box Board? “Q. Is it not the you fact price that had communications with Fred Renshaw and Dick Herman . . . ? “Q. you Did not so testify your in government interview statement of January 10, App. 1978?” 29-31. 3 Judge Chief John Singleton, V. Jr., of the District Court for the South ern District of Texas expressly powers exercised the of the District Court for the Northern District pursuant 1407(b). § Illinois to 28 C. U. S. The contempt hearing was by telephone conducted with his chambers Houston. 252 him against used not could

testimony 1153.4 that id., then held court see action, imm grant and independent a separate absent 6002, § under that repeats civil a deponent’s unity,5 his prior tracks closely verbatim verbatim that acknowledging ques While not protected. tes from the immunized derived” be] [would “of course tions answers to such ques reasoned the court timony, current, independent the deponent’s “are derived tions a new source create “necessarily and thus of events” memory criminal pros in a subsequent be used that could of evidence” Id., (emphasis original). at 1155 Conboy. ecution in the Courts the conflict resolve certiorari granted We affirm. (1982), 1141 now 454 U. S. Appeals,6 h—I H have the to com- must government power It is settled effective “to information necessary secure pel testimony Murphy Comm’n, 378 v. enforcement.” law Waterfront (1964).7 For many years, however, person 52, U. S. 79 under a governmental who was compelled 4 Conboy could Appeals’ The correctness of the Court of conclusion immunity, privilege, is not before assert Fifth Amendment absent some us.

5 A Attorney grants United States declined to authorize depositions connection with the civil here. 6Compare Appeal Corrugated, Litigation, In re Container Antitrust (CA2 1981) Fleischacker, immunized), 70, F. (deposition 644 2d 75 answers (CA8 Borden, Inc., and Little Rock 700, School District v. F. 2d 705 632 1980) (same), Litigation, Ap Corrugated with In re Anti-Trust Container peal Franey, (CA5 1980) (answers immunized), 1086,1095 620 F. 2d denied, (1981). cert. 449 U. 1102 S. 7 Calandra, See United States United (1974); 338, 345 v. 414 U. S. Mara, States v. (1973) 19, (Marshall, J., dissenting); 410 U. 41 S. Kastigar States, (1972); Murphy, v. United 443-444 378 U. S. States, S., (White, J., U. Blackmer v. United concurring); 93-94 Blair (1932); (1919); U. S. United 250 U. S. Brown Walker, (1896). 591, v. 161 U. S. 600

253 could not immunity prosecuted conduct any about Jersey See New Portash, which he had testified. 440 (1979). U. S. 457 Prosecutors therefore were reluctant to such grant “transactional” immunity potential targets of criminal S. investigations. Rep. See No. 91-617, 53 p. (1969). “major purpose” the Organized Crime Control Act 91-452, Pub. L. 84 Stat. of which § 6002 was a

key was “to provision, provide justice system with the to . . necessary tools . legal strengthe[n] the evi dence process and gathering insur[e] evidence will then be available and admissible at trial.” 116 Cong. Rec. (statement (1970) Germain). of Rep. St Congress to make the sought grant immunity more useful for law enforcement officers through two specific First, changes. made the Congress less expansive8 by repealing the for transactional authority and pro for the less viding comprehensive use immunity author in §6002.9 ized Second, certain Congress gave officials 8In Murphy, Justice White stated that “[(Immunitymust be as broad as, harmfully than, but not wastefully privilege against broader S., self-incrimination.” 378 U. (concurring opinion) (quoted at 107 with (1970)(statement Poff)). approval in Cong. Rec. Rep. In its Report, Committee explained provide § House 6002was not an “immunity bath,” but was to be “no broader than” Fifth Amendment (1970). privilege. Rep. H. R. 91-1549, No. p. 42 provides: Section 6002 refuses, “Whenever a privilege against witness self- basis of his incrimination, provide or proceeding other in a be- information ancillary fore or to— “(1) grand a court jury States, or of the United “(2) an agency of the United “(3) Houses, either of Congress, joint House or a committee of the two committee or a subcommittee of either House person and the presiding proceeding over the to the witness communicates an order part, comply issued under this refuse with self-incrimination; order on the basis of privilege against but no tes- (or timony or other information information under the order 254 exclusive to authority grant of Justice10

the Department immunities.11 immunity of the use constitutionality

The Court upheld Kastigar States, (1972). United 441 406 U. S. statute the Fifth limited testimony to compel power The must held that any and we Amendment, were how- satisfied, We privilege. with be coextensive information) testimony directly indirectly from such or other or derived any case, except prosecution may be used statement, failing comply to with a false or otherwise perjury, giving the order.” 6001(2) book, “any paper, include "other information” to defines

Section document, or record, recording, other material.” 10 6003 states: Section “(a) may testify any has been or be called to In the case of individual who ancillary or provide proceeding other before or information jury the United grand court of the United States or a United proceeding is or judicial for the district in which the States district court (b) section, may issue, this be held shall with subsection accordance district, upon attorney an order request of the United States for such provide requiring give other information such individual or give provide against self- which he refuses to or the basis of his incrimination, provided in 6002 of such order to effective as section become part.

“(b) Attorney attorney may, approval A with of the United States General, Deputy any designated Attor- Attorney General, or Assistant (a) General, ney request when an order under subsection of this section judgment— “(1) be nec- or other information from such individual essary public interest; to the and “(2) provide likely such individual has refused or is to refuse privilege against other information on the self-incrimination.” basis of his 11Congress only role in the immu playing foresaw the courts a minor nizing process: merely “The find granting court’s role in the order is 91-1549, supra, Rep. facts on which No. predicated.” the order is H. R. (1970). 43; Rep. Cong. H. Rec. 35291 91-1188, p. R. No. See (1970) (statement Poff). En Rep. on Law President’s Commission Cf. Justice, Challenge in a Free forcement and of Crime Administration of (1967) only Society “[(Immunity granted (recommending should officer”). prior approval prosecuting with the jurisdiction’s chief §6002 provided protection ever, that this measure of dangers against privilege pro- thus “removed the which the rejecting argument tects.” at 449. Id., that use and adequately protect derivative-use would not a wit- incriminating ness from various uses of the testi- mony, emphasized provides “[t]he sweeping we statute proscription any of use, or indirect, direct testimony information derived therefrom . . . at 460. Id., We added that once a defendant establishes that grant immunity, he has testified under a “the [has] duty prove pro- the affirmative evidence it poses legitimate wholly is to use derived from a source inde- pendent compelled testimony.” of the Ibid. Thus, “immu- nity from use and derivative use ‘leaves the witness and the substantially position Federal Government in the same privilege’ if the witness had claimed his in the absence of grant immunity.” (quoting Murphy, Id., at 458-459 79). U. S., at

Ill foregoing statutory history princi- With the and relevant ples disputed turn mind, we now It to this case. is not questions Conboy directly that the asked of or were indi- rectly testimony. derived from his immunized issue as The presented to us is whether the causal connection between the questions and the answers is answers so direct that the also testimony are derived from and therefore should be ex- grant immunity. cluded under the argument §6002 language Petitioners’ based understanding and on a common from.” of the words “derived questions formulated on the basis of immunized testi- mony clearly testimony. are Thus, “derived from” the repeat closely depo- the answers that track a verbatim or necessarily nent’s are from” and also “derived by” testimony. “tainted such find therefore no Petitioners Appeals by basis for the be- distinction Court of made questions responsive ques- tween and answers to those same very its nature is evoked and re- An answer tions. question. sponds in a contained information straightforward: Conboy’sposition is also do not Questions questions, Unlike the are do. answers incriminate; answers indirectly grand directly from the derived transcripts, deponent’s jury from the cur- but or interview memory depo- independent of events. Even when rent, gave deposition are identical to those he answers nent’s grand jury, truth, under oath to tell the not neces- he is grand jury, sarily but as he it told it before the knows as he deponent creates a new Each new statement now. pre- the initial does not sum, “source.” merely prosecuting; prosecutor limits vent the sources of evidence. arguments

Although parties make their terms track- ing those of the statute —whether the prior testimony the crux from” the is clear that “derived —it grant immunity dispute of it- of is whether earlier their Conboy compelled that the self to talk.12 Petitioners contend Conboy’s immunity supplanted prior grant already of had deposition. privilege time of the civil Fifth Amendment at the testimony immunity, course, of Petitioners would limit this testimony. “closely prior It is his that tracks” argued need not the Government’s that would threaten interest avoid- for admissible evidence or the individual’s ing threat, ad- a self-incrimination. In the absence of such plain- civil antitrust missible evidence should be available to assumptions upon accept which tiffs. But we cannot petitioners’ District Court view, In our a conclusion rests. questions compel Conboy deposition a over cannot to answer privi Amendment no Fifth (“Conboy Brief for Petitioners 9 had See by the immu provided lege protection to assert because of the coextensive witness to a nity statute”); (“[R]equiring Reply Brief for Petitioners under answered previously questions answer a second time that were immunity original grant expansion of the immunity not in an does result grant”). Amendment right,

valid assertion of his Fifth absent a duly- at the time.13 immunity authorized assurance We note at the outset there although practical reasons for not as far as the Fifth testifying,14 deponent’s he should be Amendment is concerned indifferent be- right by tween the afforded silence and that afforded protection A interest immunity. deponent’s primary that the protec- tion interest, be certain. The Government’s however, may be affected whether seriously by relies at the deponent Fifth civil his Amendment deposition on his grant immunity. With due recognition petition- Blackmun, concurring judgment, Justice the Court’s assumes right Conboy had a deposition, to remain silent at the which defini immunity compel tion assumes the order itself testify does a witness to deposition. at civil He the “fruits” discusses doctrine where a witness’ deposition independent at a is “an act of free will” and concludes Conboy deposition questions, “had answered the Post, protected by not have original immunity grant. been .”. .. 280. hypothetical. We have no occasion to address this The issue is e., testify Conboy whether can be whether the —i. compels order him prior testimony to track his deposition at the civil —over rights. If, conclude, assertion of his Fifth origi Amendment we nal proceeding, does not extend to the civil judge then the authority Conboy trial lacks compel over the of his irrespective assertion privilege. This is so whether, deposition asserting privi had testified at the rather than lege, his answers could have been admitted him a criminal trial. We therefore need not now decide the to which civil testi extent mony, freely given by position, “directly in Conboy’s or indi rectly prior grand derived” from jury testimony.

As Justice opinion analysis Blackmun’s makes a factual under the doctrine, “fruits” appears open possibility to leave that outcome in a subsequent may criminal deponent of the be a different future case because of differences in the factual He nevertheless record. concludes, we, do compel as a civil power that district are to courts without deponent right, over a valid assertion of his separate absent grant § immunity pursuant of to 6002. 14 testifying associates, Besides the of in against any costs close creases the committing risk of perjury the more he talks. Cf. U. S. C. immunized). § (perjured testimony not inquiry our then is whether evidence, need for admissible ers’ jeopardizing the Government’s without can be met this need scope limiting en- of an or interest certainty protection. deponent’s croaching upon A transcript from verbatim immunized taken Questions responses depo- of several from could evoke one (ii) (i) adopt repeat his answer;15 immunized nent: he could transcript of his immunized answers that the he could affirm (iii) testimony; accurately he could recall reflects responsive question but not dis- additional information (iv) testimony; or he could disclose in- in his immune closed responsive question. to the Petitioners formation that not they, prior grant im- nor could that the of use contend, not do self-incriminating munity protection all informa- affords the immunized witness occasion tion disclosed testimony. peti- giving Rather, of the immunized after responses argue only would be the first three tioners from” his immune and therefore would be “derived deponent any subsequent for use unavailable prosecution. Conboy premise deposition Petitioners’ is that the designed evi- not to but to obtain information,16 discover new immu petitioners extreme case be the entire The where read testimony; grand jury transcript; nized then if is his ask the witness simply and he answers “Yes.” petitioners

16 Directexamination not as as assume. limited in the contempt questions District Court’s civil that the asked order stated deposition transcripts, but did directly” “were taken immunized exactly deposition define ask. Other questions petitioners what could mere Appeals go beyond permitted questioning Courts have direct Corrugated Container In re prior testimony. restatements See Litigation, Fleischacker, Antitrust Appeal 2d, (compelling 644 F. at 79 questions specific subjects actually were “concerning answers upon by transcript questions appearing touched in the Borden, Inc., 632 F. 2d, Little Rock School District testimony”); at 705 “ (compelling ‘the same long questions answers confined to as dence that the statements repeats the immunized simply Because there will be little transcript.17 opportunity for the of to statements on grant direct examina- sweep tion not intend to immunize, the Government did or for fall to outside of deponent give responses may be of and later used him a against subse- criminal petitioners argue that quent prosecution, Conboy’s of will carbon yield only copy grand jury situation, such a it would be transcript. desirable for civil plaintiffs, those suits that particularly bringing private sup- plement enforcement of the federal antitrust available, to have to laws, access information. probative if But even the direct examination is to limited the ques- in the tions and answers immunized transcript, there remains the right cross-examination,18 of relied right traditionally to test as upon expansively credibility well as seek the truth. Petitioners recognize this but maintain that problem, the antitrust defendants “would be entitled to test the accu- time, geographical and [witness’ immunized] substantive frame work as the Appeal Starkey, grand jury testimony’”) 600 F. 2d (quoting (CA8 1979)). dissenting opinion apparently does Justice Stevens attempt when questioning proper indicate will exceed limits. purposes case, grand transcripts 17 For jury we assume that the are testimony inadmissible as civil is not evidence trial because the 803(8) subject excep (hearsay cross-examination. Cf. Fed. Rule Evid. 804(a)(1) (witness public tion records); for certain Fed. Rule Evid. unavail exempted able when Rule testifying ground privilege); Fed. (former 804(b)(1) Evid. testimony unavailable admissible when witness and party opportu whom had an testimony is now offered cross-examination). nity for 26(b)(1) Fed. Rule depositions Civ. Proc. (stating that Cf. “if taken sought reasonably the information to lead to appears calculated 30(c) discovery (allowing evidence”); admissible Fed. Rule Civ. Proc. 32(a) depositions); (deposition cross-examination at Fed. Rule Civ. Proc. “admissible were though under the applied rules evidence present 804(b)(1) then admis testifying”); (deposition Fed. Rule Evid. party against sible if the in a civil action whom the is now offered cross-examination). opportunity had develop an Conboy’srepeated testi- racy immunized truthfulness testimony.” beyond mony going of that the confines without Regardless limita- Reply 14-15. Brief for Petitioners scope,19 imposed may however, on its cross- be tions that produce information to and often will is intended examination produce ad- that, assume must on direct. We not elicited dep- scope at the of cross-examination evidence, the missible testimony. easily immunized limited to the osition cannot assumption implicates both the Government’s and the This §in 6002. embodied individual’s interests B immunity from to immunize and exclude Use was intended only subsequent that information to criminal trial which expressly If has surrendered future use. Government ongoing investigation engaged in an Government is particular activity immunizing issue, new information (e. one) may g., questions in a like the answers to case prosecu- subsequent in a make it more difficult to show wholly that similar information inde- tion pendent was obtained sources. If a to conclude district court were immunity proceeding civil order that the deposition testimony closely tracking to civil extended testimony, deponent it in effect could invest the immunity with transactional on which testi- matters about proceedings. precisely fied the immunized This is immunity Congress prohibit. pur- kind of intended § pose immunity scope of 6002 was to limit the to the level constitutionally required, that is as to limit the use well 1963) (in (CA2 Cardillo, See United States deter 316 F. 2d mining privilege during whether of a witness who invokes defendant, cross-examination be used distinc court draws precludes tion between merely cases which the assertion of the inquiry into credibility collateral of witnesses and matters bear those which prevents inquiry assertion about which witness into matters direct). testified on Attorney General, which to those cases gaining designated determine that wit- him, officials opportunity testimony outweighs loss ness’ prosecution of that witness.20 C § places interpretation of 6002 also substantial Petitioners’ deponent.21 Unless as- risks on the incriminating will not be sures a witness that prosecution, subsequent against him a criminal in used protection the certain of his witness has received exchange. that he has been forced to Amendment authority respon- a No court has to immunize witness. That sibility, peculiarly noted, as have an executive one, we designated only Attorney a of General or officer Department immunity. authority grant of Justice has use C. 6003. §§6002, See U. S. Nor should a at the court, testimony, predetermine time of civil the decision of the subsequent prosecution question court a criminal proving whether the Government has met its burden of proposes legitimate “the evidence it to use is derived from a wholly independent testimony.” source of the Kastigar, holding Conboy S., 406 U. at 460. Yet in con- tempt for his Fifth silence, District Court essentially predicted below a court future criminal Conboy against obligated protect of will be evidentiary deposition testimony petitioners use of the seek. predictive judgment enough. do not We think such a 20We need desig not decide Attorneys, whether United States when by the Attorney General, nated presently authority have to immunize the testimony of a proceeding civil when deter the Government public mines that the interest would be served. of None the tests by set forth Appeals adopted Courts of that have petitioners’ interpretation guid §of 6002 provides deponents with certain must they ance as to when supra. must not. they talk and when n. See §6002 imposes interpretation risks on the of Petitioners’ testimony properly or not the deponent whether subsequent prosecu- in a him be used can compulsion order in Accordingly, Court’s the District tion.22 authority grant statutory aor new in the absence case, justi- Attorney, cannot be United States compelled testimony. exclusion fied concurring opinion: in his Meyers, 419 449 As the Court stated Maness v. U. S. (1975), compelling testify upon a witness to “reliance objection suppress later or motion to ‘let the cat out’ would putting with no of 463. Id., assurance whatever it back.” at Conboy maintaining properly We believe acted silence compulsion in the face the District order and Court’s testing validity appeal. the of his

> emphasized private importance This Court has the the furthering policy goals action as a means of certain fed- 22 (“Further post, incriminating Cf. at concurring) (MARSHALL, J., always evidence that from compelled testimony derived be traced cannot source”); 14, back its supra (increasing perjury); n. risk of harm and 23, n. (increasing exposure liability). to civil infra including regulatory the federal antitrust laws. statutes, eral g., Inc. v. International Parts Mufflers, e. Perma See, Life (1968); Corp., v. Borden United States 134, 392 U. S. (1954). private civil 518-519 But actions Co., 347 U. S. primary responsibil- supplant, only supplement, can proposed ity government. Petitioners’ construction of Congress § sweeps intended could hin- further than by turning governmental of its laws enforcement der immunity immunity into a form of transactional for sub- use proceeding. puts jects It also examined the immunized danger deponent of criminal in some unless immunity or assurance of exclusion that the receives an give. properly other Silence, on the hand, courts cannot deponent’s rights preserves and the Government’s inter- judicial resources that otherwise would be ests, as well as the many judgments required petition- that to make difficult § interpretation require.23 of 6002 ers’

V deponent’s deposition testimony, We hold civil closely testimony, tracking his is not, immunized with- duly out authorized assurance of im- time, at § meaning munized within and there- 23The dissent minimizes the our enforcement interest construction § protects, of 6002 post, 288-290, contending at “misunderstood] that we prosecutorial interest,” post, however, note, We con 288. ceding that deponent’s testimony may hamper there is some “risk” that the prosecution, post, § interpretation the dissent concedes that its of 6002 provides at least Congress somewhat broader than intended. Moreover, securing dissent overlooks possible difficulty the co operation of individuals such Conboy may who be more reluctant in the proceedings if they deposition testimony know that later exposure increase their liability. Finally, judg to civil in the dissent’s ment, “the risk compelled testimony hamper poten theoretical could a tial plainly outweighed by [is] the enforcement interest allow ing the deposition go to This, forward.” Ibid. at 289. post, See also however, is judgment a Justice, reserved Department for officials of the of not the courts, federal case-by-case make on a basis. of his valid assertion over a not be

fore Ap- judgment of the Court privilege.24 The accordingly peals is

Affirmed. Marshall, concurring. Justice given im- who has join a witness decision that I the Court’s privi- testimony may Fifth Amendment invoke the munized response questions on lege proceeding based at a later rely Permitting litigant testimony. a civil his immunized to defeat an otherwise valid on purposes with the be inconsistent claim regardless use-immunity statute, whether, had voluntarily, could his answers have been witness answered against trial. The Court’s deci- him in a later criminal used question today such answers not reach the whether sion does be admitted the witness. his dissent- could later Conboy may ing argues opinion, not Justice Stevens privilege precisely his Fifth Amendment because assert the properly against him be used in a later answers could agree I criminal trial. Because with Justice Stevens properly such answers could not used separately explain why I I believe trial, write respondent nevertheless retained his Fifth Amendment privilege. Conboy voluntarily petitioners’ deposition

If had answered questions, “directly his answers would or indi- have been rectly prior testimony grand from” derived before the jury. questions solely transcript were based respondent’s grand jury testimony. suggestion There no questions that the same or similar had would have been asked petitioners’ attorneys transcript grand not obtained a of jury testimony. respondent ques- Thus, if had answered the holding Our to precluding compelling limited tes district courts timony in civil over valid assertion of the Fifth Amendment privilege, specific absent a testimony. assurance for such legiti- a not have been “derived from would tions, answers compelled independent testimony.” wholly of the mate source (1972). Kastigar U. S. v. United subsequent aat of such answers The admission represent departure a substantial from the would Kastigar. premise decision in of this Court’s fundamental use-immunity upholding an attack statute based privilege against upon the Amendment self-incrimina- Fifth use a tion, the Court concluded that affords wit- protection comprehensive protection as ness “as afforded by privilege.” The Id., 449. Court stated that the “prohibits prosecutorial using statute authorities from compelled testimony any respect,” (empha- id., at 453 original), “provides sweeping proscription insis that it a and any compelled testimony use, indirect, direct or pros- information derived 460. If therefrom,” id., at by ecution could introduce answers elicited from a witness questions that would not have been asked but for the witness’ testimony, protection immunized afforded use immu- nity comprehensive protection not be “as af- privilege.” forded 449. Id., at agree my I therefore with Brother Stevens that answers questions posed by petitioners’ attorneys to the could not properly have been used a criminal trial. It respondent does not follow, however, that can be respondent to answer. In this case it is that, conceded had given grand jury, never the immunized before the he would have been entitled to invoke Amendment privilege response questions concerning the same sub- ject questions deposition. matter as the asked at the only question respondent asserting is whether barred previously the Fifth testi- because statutory grant fied under a and because his deposition questions “directly answers to the would be indirectly testimony. derived” from his constitutionally compel trial view, judge

In my finding solely upon incriminating to give against be used not properly answers could that the witness’ in This decision Court’s proceeding.1 criminal him a later privi Fifth Amendment to invoke the entitled generally is 1 Awitness possibility a realistic there is whenever lege against self-incrimination any way to him of a crime. convict can used question a be answer to his brought be or that prosecution will that a criminal probable need not be It prosecution; witness in a later the introduced will be the answer witness’ against that his answer will be used possibility only a realistic need show only compulsion of forbids not Moreover, the Fifth Amendment him. prosecution, in a criminal but also be admissible testimony that would itself admissible, may testimony, or itself aid whether compulsion of incriminating evidence that can be used at of other development in the (1951). States, 341 U. S. 479, v. United 486 trial. See Hoffman only sought possi- “if the cannot privilege inapplicable of, for, against the or in aid a criminal bly used as a basis be (1896). Walker, 591, Brown v. long 161 U. 597 It has been S. witness.” may give testimony, a to require court witness includ- recognized that the act, to in a criminal when there is ing that admits involvement possibility charges being brought against of future the witness. no criminal may testify example, concerning For a his involve- protected from prosecution by ment in a crime when he is later the Double States, g., e. see, Reina v. Clause, United Jeopardy 364 U. S. 513 (1960) g., limitations, see, e. United (dictum), applicable of statute (CA4 Goodman, States v. 1961), pardon, 289 F. 2d 259 or see a Walker, supra, Brown v. As 599-600. Justice Brennan indicated York, in Piccirillo v. New 400 dissenting opinion 564-565 U. S. (1971) (dissenting certiorari), upon from dismissal this limitation privilege against language from self-incrimination derived Fifth Amendment: course,

“Implicitly, any upon ‘in suggests limitation criminal case’ a privilege reach .... possibility there is no of a criminal [I]f case, then the apply. precisely would not that is the basis And immunity on which this consistently upheld grants Court has Walker, Brown States, v. 161 U. Ullman v. United (1896), S. 591 350 (1956).” U. S. It recognized has also may testify been compel that a court a witness to when his answers could implicate neither him in conduct nor possibly discovery lead to the of past criminal conduct. See Hoffman supra, support Kastigar does not such com- v. United pulsion. Kastigar concerned a federal In was with Court permits Attorney, a States federal statute that United representative Congress agency, duly or authorized immunity compel give thereby grant a witness to use §§6002-6005. incriminating testimony. See U. S. C. Kastigar use itself involved a conferred grand jury. upon a witness called to before use-immunity upholding the statute constitutional pursuant only statutory au- attack, that, Court held thority immunity, con- to confer such Government stitutionally compel incriminating testimony exchange testimony. from use derivative use of that Kastigar judge, hold a S.,U. at 462. does not that trial act- statutory authority grant ing immunity, may rely without to testimony to overrule an otherwise valid by deponent privilege in assertion of the Fifth Amendment a a civil case. justification requiring

Whatever there be wit- for a give incriminating testimony ness to aid of investigation granted after Government use immu- has nity, justification compelling there no similar is for a witness give incriminating testimony pri- to for benefit of a litigant vate when the Government has not chosen to immunity. Any testimony compelling interest served United, States, supra; States, Heike v. United 227 U. S. 142-145 (1913). too, limitation, implicit This language is of the constitutional guarantee, since a provide testimony witness who has been forced cannot incriminate him has meaningful “compelled not in been sense any criminal against case to be witness himself.” case, In this fully Re- applicable. is spondent subject remains prosecution, to criminal and his answers to deposition questions by petitioners’ attorneys impli- asked would both cate him in incriminating criminal conduct and further tend to lead to information. subjecting to the risks justify the witness insufficient

is testimony. incriminating compulsion of that attend incriminating give testi- forced to a witness Whenever significant fruits of that mony, risk that is a there incriminating evi- him. Further be used will later compelled al- cannot is derived dence ways to its source: traced back compelled testimony suspects who

“A witness pressed develop indeed to a lead will be hard used to was necessary prove it. And of out the evidence ferret prove say not it, no he need it is answer course proof govern- puts though on the the burden the Court difficulty meeting government no will have ment, produces if the witness no mere assertion its burden contrary good prosecuting faith of the evidence. The safeguard the sole of the witness’ thus authorities good rights. [E]ven their faith is not sufficient safe- through paths guard. For the of information inves- tigative bureaucracy may long winding, and well be prosecutor acting in the faith cannot be cer- even a best depths investigative in the of his tain that somewhere apparatus, including employees, often hundreds of there prohibited was some use of the testi- mony.” Kastigar S., U. at 469 United dissenting). (Marshall, J., See also Piccirillo v. New York, 400 U. S. 567-568 (1971) certiorari); dissenting J., from dismissal of (Brennan, (1958). Speiser respondent 357 If Randall, U. 525 S. privilege, is not allowed to assert the he Fifth Amendment depositions, may may undergo numerous civil he be forced to upon original testimony,2 elaborate his his 2The questioning at beyond the mere ratification went well accuracy of the grand upon of the jury transcript. Conboy also called was again to answer the questions grand jury. identical asked the before may petitioners Conboy While be expected “only ratify true that to may broadly may be disseminated. As a result, he face greater much risk that tainted evidence will be used initially following compulsion him than faced of the grand jury testimony. opportunity to seek exclusion of incomplete protection, tainted evidence an for “a court, at testimony, predetermine [cannot] the time of the civil decision of the court in a on question whether the Government has met its burden of proving proposes that ‘the evidence it to use is derived from a legitimate wholly independent source of the testi- mony.’” (quoting Kastigar Ante, at 261 v. United States, 460). supra, Meyers, Cf. Maness v. 419 U. S. 461- (1975). appropriate subject It be a witness to these risks pursuant when the Government has conferred use statutory supporting authorization, but the interests com pulsion Kastigar are far weaker In here. use-immunity the Court noted that statute advanced compelling incriminating Government interests testi mony, leaving open S., 406 U. at 443-444, 446-447, and in possibility prosecuting on the basis of “evi legitimate independent dence from id., sources,” at 461. Congress this case, however, neither nor the United States Attorney expression has made a similar int Government only public by erest.3 The interest that would be served forcing respondent obtaining would be that of testi- (Stevens, known,” confirm already J., facts that were post, at dissent- ing), there was no Conboy’s answers, assurance in based this case that upon his current events, recollection of that were provide would not details prior grand absent from jury testimony. observes, As the supported Court the Government interests compulsion incriminating testimony Kastigar be undermined compulsion respondent’s testimony in The Government this case. in preserving interest prosecute respondent the chance in the future based “legitimate independent” compromised evidence would creation of Ante, testimony. additional immunized at 260-261.

270 suit.4 Even that inter- antitrust to a private relevant

mony substantially served.5 not be est would petitioners’ deposition to answer If he were risk that his testi- face a realistic would Conboy questions, that he evidence incriminating to further would lead mony criminal prosecu- at a subsequent unable to exclude would be statute use-immunity underlying tion. The interests and in view the interest here, my general have no application an sub- cannot be considered testimony adequate in obtaining I in join therefore the Court con- for those interests. stitute permit Fifth Amendment does not a trial cluding incriminating testimony solely to compel in a civil case judge or would be testimony “directly finding a upon 4 judge’s Attorney to the trial if States consented com Even the United might respondent’s answers, judge’s improper. action pulsion notes, open question an has As the whether Government Court of a witness in a civil testimony pro authority statutory “to immunize public that the interest would ceeding when Government determines Ante, added). 261, Moreover, (emphasis n. 20 the con be served.” at open to stitutionality statutory a authorization remains doubt. such (1967) Garrity Jersey, v. New 493, (declining to Cf. 385 U. S. 496 consider effect, constitutionality which, statute allowed the forfeiture-of-office office, compel public officer, a of removal from authorities to under threat incriminating testimony exchange from use or provide proceeding). derivative use of that at Indeed, yet spoken under this Court has not as to the circumstances a criminal case which defense compel a trial court testify concerning previously testified before questions to which he had jury may grand compel secure such witness’ Government to Praetorius, testimony by granting Cf. United States immunity. him v. (CA2 Morrison, 223, 1054, 1980); F. 2d United 622 F. 2d 1064 535 States v. (CA9 (CA3 1976); Alessio, Earl 1976); United States 229 528 F. 2d 1079 v. United F. 2d n. App. 77, 80, U. S. D. n. C. (1966) J.). (Burger, questionable It is would be admissi whether the trial, light placed on cross- might ble of the limits have to be Ante, litigants. examination the other civil 259-260. Nor information, respondent’s petitioners help answers further relevant obtain testimony. petitioners already grand jury respondent’s since have access to indirectly previously from” the derived witness’ immunized testimony. in the Brennan, concurring

Justice judgment. today Court holds deponent’s deposition testimony, closely “a civil track- ing testimony, prior duly is not, his immunized without at the time, authorized assurance immu- § meaning within the and nized there- may fore not over a valid assertion of be his (foot- privilege.” Ante, Fifth Amendment at 263-264 omitted). note

Justice Blackmun’s opinion concurring the judgment likewise states:

“In this we are to case, asked decide whether a wit- grand jury pursu- who has ness testified before a federal §§ immunity, ant ato of use S. 6001-6005, U. C. may be forced to about same events deposition, despite civil his assertion of his privilege Fifth Amendment self-incrimination. agree may I with the Court’s he not be conclusion that testify.” forced so to Post, at 272.

I understand to rule,* these be two of the same statements completely agree and I I reason, them. For with both of judgment concur in the of the Court. majority’s formally

*While the to holding statement of the limited deponent’s deposition testimony “closely situation where a track[s] prior sub-, testimony,” ante, immunized I not take that do Black- that of Justice stantive difference between its formulation and mun. As Justice Stevens’ majority’s opinion dissenting both and opinion, post, p. clear, tracking” “closely make situation strongest possible case for is derived finding Hence, deponent may testimony. hold that a assert his do in all necessarily this case is so hold that Justice Blackmun states cases, as explicitly. everything agreement with

I not in entire am opinion. My majority opinion in Justice Blackmun’s small however, are over matters of them, with differences go approach, the substance of their conclusions. do not specialized legal in the rather set- this case arises Moreover, ting require statutes and does broad- of use scope problem pre- beyond analysis ranging here Imind, do not think it these considerations sented. With separate opinion lengthy setting forth file a to worthwhile differences detail. these in the Blackmun, concurring judgment.

Justice whether a who In we are asked to decide case, grand jury pursuant grant federal to a has testified before a may immunity, 18 be forced to §§6001-6005, U. S. C. of use deposi- testify same in a civil about the events privilege despite his of his Fifth Amendment assertion tion, agree against I the Court’s conclu- self-incrimination. with may testify. I not so to Because reach sion that be forced only by separately I to route, a different write this conclusion explain my views. authorizing immunity, grants

The of use statute § may provides C. be ordered to U. S. that witness testify despite privilege, but his claim of a Amendment testimony “no or other under the information (or any indirectly directly order information derived information) may against such or other used (with excep- witness tions). limited case” stated parties The Court in this case “make notes that the arguments tracking their of the statute— terms those whether the from’ the is ‘derived testimony.” however, Ante, view, at 256. the Court’s grant dispute of im- “the crux of their is whether the earlier munity compelled Conboy itself by Ibid. It seems to talk.” way, characterizing me that Court in this the issue begs question us. The earlier now before of immu- nity, by obviously compel testify Conboy itself, does not deposition. sought a later It is the District Court that has compel Conboy’stestimony. Whether that court sodo is certainly the ultimate issue the Court must decide. But the rephrasing bring Court’s not does us closer to the answer. It is, course, black-letter law that a witness cannot as- sert a Fifth Amendment “if the testi- mony sought possibly cannot be used as a basis or in for, aid prosecution against of, a criminal the witness.” Brown v. (1896); Walker, 161 U. S. see Mason v. United (1917). U. 365-366 In this S. case, how- Conboy ever, the Court concludes that has a valid Fifth privilege “irrespective [depo- of whether ... his sition] answers could have been admitted him at a ” explains Ante, criminal trial. n. 257, 13. Court never the basis for this it conclusion, and seems to me plainly wrong. Conboy’s deposition testimony If cannot be against prosecution, used him in a cannot assert a Fifth Amendment at his may testify. compel and the District Court him to We must § turn to 6002 to determine whether the can be so immunity used. Section 6002informs us when has that been granted, protected against use of “information directly indirectly [the immunized] or testi- derived from mony.” Conboy’s deposition testimony Whether is so de- rived is the real issue before the Court. statutory language

The Court finds this to its irrelevant analysis. petitioners The Court a “need asserts that have for admissible evidence,” has “interest in Government an limiting scope respondent immunity grant,” of an and Conboy pro- [his Amendment] has an “interest. . . tection be certain.” 257. The Court then Ante, 258, adjust seeks to these solution sat- interests and arrive isfactory appropriate to all. While this as a means of be 274 agree appropriate policy,11

setting public it an cannot interpretation. statutory method involving every statute, of a construction case As with language employed by starting point Con- must be the “our (1979). Corp., 442 U. S. 337 gress.” 330, v. Sonotone Reiter § language of 6002without to examine If forced we were legislative history, background and words its reference sufficiently ambiguous might re- so as to of the statute policy quire concerns addressed the Court. to the resort specific history “regard for however, In case, legislative process culminated the Act now before us meaning.” giving appropriate ground for it more solid affords Corp., I. 344 C. Credit U. S. v. Universal T. United States (1952). II A passed by This first use statute was Nation’s provided Congress in It that “no answer or other 1868. any party, discovery, pleading no obtained or evidence judicial any party any proceeding wit- means of given any . or in manner used , ness . . shall be in evidence, any party the United , such or witness ... court of respect 25, 1868, ... crime.” Act Feb. , States § Hitchcock, ch. Stat. 37. Counselman type (1892), of this U. S. this Court held that compel against him- could not be used a witness to provide protection with self, coextensive because did not the Fifth Court reasoned Amendment. The Counselman that the statute demonstrates, Gov As interests of the Justice Stevens’ dissent the Reli

ernment asserts. parties and the as clear as the Court are not all in a such as particularly inappropriate ance these interests is case only one, speculate about party where the we can Government and interpretation in which serve the Government’s of the statute would best terest in law enforcement.

“protected against [the witness] testimony the use against any proceeding, him ... in criminal in a court of only States. But it United had that effect. It could prevent testimony not, not, and would the use of his testimony to search out other to be in used evidence against prevent obtaining him .... It could not and use of witnesses and evidence which should be directly might give to the attributable he compulsion, might under on which he convicted, be when if otherwise, and he had to answer, refused possibly could not have been Id., convicted.” at 564. concluding, In the Court stated that “no statute which leaves party subject prosecution or witness after he answers criminating question put to him, can have the effect of supplanting conferred the Constitution of the United Id., States.” at 585. opinion,

Due to this latter in statement the Counselman Congress only and the lower courts assumed that a broad immunity satisfy requirements “transaction” would of the beginning Congress Thus, Amendment. in 1893, en- giving immunity complete acted series of statutes a witness prosecution any divulged compelled crime testi- mony. This reliance on transaction continued § Congress Orga- part until when enacted 6002as nized Crime 91-452, Control Act of Pub. L. 84 Stat. 927.

In the meantime, however, decided several cases Court suggesting that some forms of use consti- tutionally permissible. Murphy Comm’n, v. Waterfront (1964), 378 U. 52 S. that a state witness could Court held compelled give testimony not be could be incriminat- ing under federal law and its “unless fruits cannot be manner federal officials used Id., connection with a him.” 79. In a once a defendant had footnote, the Court added that proceeding, been authori- a state “the federal 276 showing that their evidence is not

ties have burden independent, legiti- they establishing had an tainted disputed at n. 18. Id., evidence.” mate source for the years Broderick, 392 S. 273, in Gardner U. later, Several “[a]nswers (1968), be com- the Court stated 276 [Fifth Amendment] pelled if regardless there compelled immunity use of the from federal and state testi- mony a criminal in connection with or its fruits shortly testifying.” person thereafter, And People Y. 249 N. E. Bello, 598, 602, 24 N. 2d 2d v. La (1969), Appeals interpreted York the New Court of 412, 414 Murphy to hold that Counselman did not bar and Gardner long they protected statutes, so the immu- use or fruits witness “from the use of nized thereof.”

B began Congress in It in this consid- was context ering type The House and Sen- a new statute. Reports accompanying Organized Act ate Crime Control Congress persuaded by rea- of 1970 was make clear that soning quoting from La Bello and dis- of these cases. After length, Rep. cussing Murphy S. No. Counselman and at see (1969); Rep. pp. pp. 8-11 91-617, 91-1188, 52-55 H. R. No. pro- (1970), Reports statutory immunity state that the §by broader as, broad but no vided “is intended to be as privilege against It than, ... self-incrimination. immunity concept designed to reflect the use-restriction immunity concept Murphy [than] . . . rather the transaction Rep. Rep. H. R. 91-617, 145; of Counselman.” S. No. (1970). p. Rep. 91-1188, 91-1549, No. see R. No. 12; H. prohibition against tes- Section the use of 6002’s indirectly timony “any directly derived or information Congress’ testimony” of the extent from such view reflected According privilege. House Fifth Amendment Reports, phrase to conform and Senate chosen was derivatively “present obtained.” law” on “the use of evidence Wong States, Reports v. United 371 U. S. cite Sun then commonly (1963), on known as seminal case what 471 “present representing law.” See doctrine, as the “fruits” Rep. Rep. 91-1188, H. R. at 91-617, 145; 12; No. at No. S. Murphy Rep. Gardner, In 91-1549, 42. H. No. R. Congress upon Court relied, the had used term which immunity. on the constitutional limits use “fruits” to describe throughout to the “fruits” doctrine are scattered References legislative history, whenever the boundaries of the use Kastigar In are discussed.2 v. United statute (1972), recognized we the im- 441, 406 U. S. 461 § munity “analogous provides 6002 to the Fifth Amendment requirement in confessions.” cases coerced We noted that § on 6002 was modeled a recommendation from the National Commission on Reform of Federal Laws, Criminal and we approval quoted report stating: with a Commission “‘The proposed immunity scope is ... of the same as that fre- quently, unintentionally, though even conferred as the result by of constitutional violations law enforcement officers.’” (quoting Report Id., n. 36 Second Interim of the Na- tional Commission on Reform of Federal Criminal Laws, Working Papers Mar. 17, of the Commission 1446 (1970)). light legislative phrase of this evidence of intent,

“directly indirectly § or derived from” 6002 cannot be re- 2See, g., e. (1969) (§6002 Rep. 91-617, S. p. No. “is a restriction against use of incriminating fruits”); disclosures or Hearings their on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the (1969) (re Senate Committee the Judiciary, Cong., Sess., 91st 1st port Association) (under County of New York Lawyers’ § the “testi mony compelled so id., or its witness”); fruits not be used (statement (rule Poff) at 281 of Rep. § exclusionary of 6002 is “similar to the rule which applied is now evidence assembled violation of various con (statement rights”); McClellan) (use stitutional id., at of Sen. statutes can be made “through constitutional poi the use of the fruit of the process sonous tree suppression, analogy derivative an borrowed fourth cases”). illegally amendment obtained evidence meaning. lacking to me It seems ambiguous garded First, it intended Congress intent clear. its made by required protection the Constitu- grant only minimum constitutionally protection that the Second, believed tion. identical to the was required in cases or evi- required statements protection in cases of coerced illegally obtained. otherwise dence obviously § interpretation Conboy’s of 6002 is Respondent petitioners; deposition testi- that offered narrower than subject mony involving matter as the same prior grant protected of use immu- the would be interpretation, nity petitioners’ but not under Con- under grants Congress boy’s. of intended use Because Conboy’s accept possible, must inter- we narrow as to be as ques- pretation with the Constitution. The if is consistent it whether a witness’ Fifth Amendment then, is us, tion before rights testimony given subsequent if would be violated immunity. by deposition of not covered use were incriminating statement has been obtained When an prohibits through of Fifth Amendment use coercion, the Congress statement or its “fruits.” understood when history § legislative demonstrates, 6002, and, enacted as the incorporate Congress into intended to the “fruits” doctrine indirectly phrase “directly or statute use de- Conboy’s respondent In rived.” order ascertain whether deposition testimony indirectly “directly de- would be testimony, grand jury rived” from his and conse- quently Conboy’s interpretation of whether the statute constitutional, we must determine whether concept would be “fruits” as that is understood the context of the Fourth and Fifth Amendments.3

3The underlying considerations doctrine the Fifth Amendment “fruits” necessarily are not the same in the Fourth Amendment as those relevant context. respect us, however, With to the issue before Fourth Amend ment provide determining “fruits” cases us a wit- with whether (guidance

HHHHHH supra, Wong States, v. Court held that In Sun United illegal suppressed following an arrest must a statement intervening unless it results from “an of the arrest “fruits” “sufficiently independent will,” and is act of a free an act primary purge the taint of the unlawful invasion.” free will to In Harrison v. at 486. United 392 U. S. S.,U. (1968), applied 222-224 Court similar standard following illegally an obtained confession. Our statements g., See, adhered to this test. e. more recent cases have Kentucky, Rawlings (1980); v. 448 U. S. 107-110 Brown (1975). determining Illinois, 422 U. 600-604 S. range met, whether this standard we examine of factors knowledge including speaker’s his Fifth rights; temporal proximity constitutional violation statement; the nature of the violation and involvement; and, course, the Government’s the volun- id., tariness of the statement. See at 603-604. In brief, speaker voluntarily the issue is whether the has chosen to make the later statement, uninfluenced the fact that compelled.4 statements have been difficulty concluding I find little if a witness Conboy’s position testify during deposition, were to his civil previous his statements would not be “fruits” of his immu- testimony.5 Conboy deposi- nized In this case, attended his deposition ness’ testimony prior testimony is from” “derived immunized § within the of meaning 6002. 4 In Kastigar United (1972), recognized S.U. we Congress § provide intended protection required the minimum Wong by the Sun and its Constitution. progeny establish that the “fruits” provides doctrine all protection Thus, the requires. the Constitution al though my analysis is framed in standards, terms of the constitutional issue here of what requires Constitution is of not different the issue Congress what intended. 5My analysis necessarily facing prior limited choices to the of threat contempt the district The court. witness cannot be contempt held in unless the testimony sought protected by grant of obviously by lawyer. accompanied He aware was tion rights, them with and he asserted his Conboy suggestion mis- was under a vigor. is no There relationship his between apprehension about place deposition. testimony The took civil and his testimony, long the immunized and the conclusion after impression Conboy tes- under the that his not remain did compelled by Department. timony being the Justice was Conboy grand jury, past experience before the From his Department required his tes- time the Justice knew that each immunity. grant timony, provided Govern- a fresh use attorneys civil case, not involved no were ment grant cir- had been obtained. Under the fresh danger Conboy inad- no would cumstances, there was lingering compul- vertently some incriminate himself under Any prosecuting authorities. statement made sion the independent have been an act free will. Conse- would Conboy deposition questions, quently, answered the had original testimony protected not have im- been munity grant directly or indi- because it would not have been rectly testimony. from his immunized derived my jus- of use never view, could tify compelling testimony a witness’ over a claim of Fifth privilege deposition. Amendment though at a civil Al- every Conboy, witness will be as well informed as necessarily engages witness who asserts independent privi- an act of free will. The assertion of the lege signal judge supervising proceedings should the civil testimony may that the immu- well not be “derived from” the nity grant.6 Although in- would be immunity or, use words, question other unless it would be “fruits.” whether would be cannot turn on whether “fruits” thus district court contempt has issued a order. 6 1 agree with Justice Stevens the existence of a witness' Fifth Amendment privilege depend priv does not to assert his decision post, ilege. 287, See Nevertheless, n. 7. of mind the state agree subsequent trial,71 with the criminal at a

admissible rely upon not be forced to the un- that a witness should Court suppress. This would a later motion indeed certainties of “ ‘ putting it no assurance whatever of “let the cat out” with (quoting Meyers, Ante, Maness v. back.’” at 262 U. S. (1975)). suggest, I however, do not mean to that whenever a wit- prior proceedings depo- testifies at a ness civil asserting privilege, sition without his testimony automatically should admissible him in subsequent prosecution. subsequent criminal If there is a deposi- and the Government seeks to introduce testimony judge sort, tion of in the criminal case dep- should determine under whether, circumstances, osition is inadmissible as “derived from” the reasonably immunized statements. If the witness believed his.prior grant immunity protected testimony, testimony might immunity grant well be derived from the under the I standards have set If, forth above. on the other deposition testimony truly independent hand, the was a act of prosecution. free it will, would be admissible in later witness is relevant inquiry, “fruits” because a witness’ statements only they are “fruits” if independent do not result from an act of free will. Cf. Harrison v. United (1968). 392 U. S. 222-224 A witness’ assertion of the mind; is strong evidence that state the wit- ness has demonstrated that he feels speak. free to decide whether or not to 7It beyond seems to me question deposition testimony compelled contempt order, means of a over the Fifth Amendment assertion of a privilege, would be inadmissible at a trial whether not it was later held to scope original grant be within the immu (i. nity. If the testimony e., grant was within if it was “fruits”), it would be § inadmissible under 6002. If the was not within the of immunity, permitted the witness should have been assert his privilege and testimony wrongfully compelled should be ex (1975) cluded. See Meyers, Maness (White, J., 419 U. S. con result). curring in joins, Justice O’Connor with whom Stevens, Justice dissenting. duty judicial proceeding has a to answer in a

A witness however, be com- cannot, witness proper questions. The a truth- If a witness believes himself. pelled to incriminate against him in a sub- question response be used a could ful discovery might proceeding, lead to the sequent criminal incriminating his constitutional evidence, he assert made, a right such an assertion When remain silent. clearly appears If it judge asserted risk. evaluate the must against in not be used could that the answer pros- provide proceeding and could not criminal already any have, he does not information that with ecutor speak. This a witness’ re- case concerns the witness must give him. not incriminate answers that could fusal to today of a Fifth The holds that the existence valid Court privilege depend on truthful does not whether a Amendment incriminating. dispute The does not be Court answer would during respondent’s the fact that neither answers on the nor information discovered case, this in a him subse- answers, basis of those could be used proceeding. quent n. 13. Neverthe- Ante, empowers less, Court holds that the Amendment testify. opinion respondent Court The to refuse to for admissi- stresses two interests: “the Government’s need respondent, prosecute ble evidence” a future effort to avoiding “the individual’s self-incrimination.” interest potential Ante, at 256. inter- It holds threats to those ests create a Fifth in this case. frankly puzzled by analysis. I am Government’s supposed proceeding desire to introduce in a future evidence already should be irrelevant if the forsworn Government has right by of immu- to introduce that evidence nity. avoiding deponent’s self- And, as far as the interest incrimination is “he should indifferent between concerned, be protection immu- afforded silence and that afforded analyzed nity,” point from the ante, Thus, 257. whether prosecutor question witness, view of the or the same statutory immunity whether the must answered: that has already respondent’s grand jury testimony pre- to attached any prosecutor, using or other Government, cludes the from against respondent’s deposition any him the answers in crimi- analysis question requires an nal case. That not of whether ‘testimony,’” the answers are “immunized ante, at “directly but rather of whether the answers would be or grand indirectly jury] testimony” [his derived within meaning use-immunity the statute. Because I think they respectfully I derived, clear that would be so dissent.

HH Respondent separate proceed- has been a witness two ings. January subpoenaed testify In he was before grand jury investigating a federal a violation of the Sherman participant price-fixing Act. Because he was a in the ar- rangements under review, he asserted his constitutional privilege against being compelled abe witness prosecutor authority himself.1 The then invoked his under Organized Crime Control Act of 1970,2 federal judge respondent exchange ordered the for a immunity. May respondent subpoenaed appear was in proceeding.3 deposition proceeding, respond- second At that 1The Fifth provides: person “No . . . compelled shall be any criminal case to be a witness

against himself. ...” 2See 18 U. ante, §§6002, S. C. 6003, quoted Court, 253-254, nn. 9 and 10. 3This proceeding second happens pretrial deposition to have been a case, civil but issue before if pro us would be no different the second ceeding had been a criminal trial respondent’s co-conspirators, or a coro inquest. ner’s Respondent happens represented to have been able counsel at the again second proceeding, scope but of his would be no different if he had a lawyer simply not had and had answered the questions that propounded. Moreover, were respondent the fact that he had been asked be- same questions ent was asked questions Everyone agrees jury. grand fore the testimony, of his grand jury transcript from the were derived truthful answers to those the fact disputes and no one information that was have confirmed merely would questions It there- transcript.4 grand jury in the recorded already did, whether rati- court below as the to inquire, fore logical subject of the prior fication risk of prosecution. to a new respondent Control Act Crime Organized language The plain provides: risk. law witness from that protects or information under other “[N]o (or de- directly indirectly order information or other information) such testimony rived from . . . .” 18 criminal case used against added). §6002 (emphasis U. S. C. and is asked proceeding second appears

When witness that he was to previously compelled whether the information his are true, responses quite to the was grand jury disclose from such or derived directly indirectly “information plainly in- obvious when the This seems testimony.” particularly privilege against nothing to do with the asserted self-incrimination has privilege dependent entirely on availability of the which is matter —a questions pro- whether the content of a truthful answer to the that were pounded him trial. His reluctance could used in a later criminal willingness or whether he to assert his determine elected it, privilege or to or non- nothing waive but has to do with the existence existence of itself. insignificant grand One nonincriminating fact would be added. (1) jury transcript price respondent establishes that had communications (2) with Fred Renshaw those and Dick Herman and remembered grand jury testimony; communications at the time answer to the of his an deposition question respondent would establish still the additional fact remembers in those communications. That additional fact is not itself criminating grand certainly indirectly from the information derived jury transcript meaning within the of the statute.

terrogator’s only questions transcript basis for his is the grand jury proceeding.

This natural construction of the statute was endorsed immediately Organized the Government after the Crime Con- explaining trol Act took effect. a memorandum the stat- Attorneys, Attorney ute to United States the Assistant Gen- charge explained eral in of the Criminal Division it prosecuted allowed an immunized witness to be “if it can be clearly independent standing established that evidence alone contemplated prosecution.” inis fact the sole basis of the Dept, Supp. Sept. p. Memo 595, Justice No. 2, 5. emphasized “[although government may prose- that, He cute the witness on the basis of similar evidence obtained in- dependently of the witness’s in a rare case where independent develops, practical such an source as a matter government prove independent will be difficult for the an especially divulged derivation, if the information was first testimony.” (emphasis origi- witness’s Id., n. 4 nal). And when the Solicitor General of the United States appeared later before this Court defend Act’s constitu- tionality, argument part proposition he based his on the “directly indirectly that the words derived” were intended immunity” an create “extended use and should be con- broadly.5 strued

5In part, argument relevant reads: “[MR. As GRISWOLD:]... to evidence first discovered after granted, heavy government has been there should a burden on the to be any show that such resulting evidence is fruit of a or clue from not the lead or uncovered compelled testimony. This not be a should conclusive presumption because government there can be cases where the can demon- strate that such independently evidence was It comes in the derived. mail, example, day for testimony given after the and it had been was postmarked in France a week before. “Q. Well, General, Mr. . . Solicitor what the situation . where the about government compel testimony given does a testimony and the is and prosecutor except induces the an testimony not to use to launch investí- It General's argument. the Solicitor accepted This Court it construing after to pro- statute use upheld the protection resulting with commensurate vide protection itself:6 of the the invocation prohibition use, a sweeping any provides “The statute in- and indirect, compelled testimony or direct .... therefrom formation derived which we reaffirm as appropri- of proof, burden “[The] it im- taint; rather, negation limited to is not ate, duty the affirmative prove the prosecution poses le- from a it use derived that the evidence proposes tes- wholly independent compelled source gitimate States, 441, 460 Kastigar United v. 406 U. S. timony” added). (emphasis means, wholly testimony ex-

gation by independent unrelated and out, given, independently— cept by the that it was search fact appear I it question, is hard but think if does “MR. That GRISWOLD: given, being investigation consequence was the of the evidence that the indirectly something derived as a re- that then the evidence is which was given. testimony sult of the

“Q. you— Would indirectly directly quite I construe

“MR. GRISWOLD: would evi- government respect to broadly put I the burden on the with and would given. dence derived after the except for,’ “Q. you put on a for’ test in the sense that So ‘but ‘but government would never have had it? hand, I Almost, hate “MR. GRISWOLD: Mr. Justice. On the other cases, knowing give very purely hypothetical much to conclusions about it look practical will make full well the that can arise which situations be a differently, say I think there should perfectly but I'm free to heavy to use government the evidence wants burden on the to show that testimony.” Tr. of Oral directly indirectly was not derived from the pp. Kastigar States, Arg. 70-117, 30-32. United v. T. No. O. 8, 9, 12, Kastigar, quoted in nn. See also the brief in Solicitor General’s infra. broad, obviously If could were a witness not at least that v. Hitch See Counselman jury. grand before cock, 436-438. Ullmann 547; S. United U. S. 350 U. subsequent prosecu- We held that evidence be used in a only successfully tion if the Government demonstrates that it would have evidence obtained that even if the witness had grand jury. never testified before the id., See 458-459; Murphy v. Comm’n, 378 U. S. 52, 79. Waterfront questions propounded respondent

The that were to the deposition his in this case called for answers that were presumptively scope statutory immunity. within the presumption protect That would him from the use a subse- quent any criminal of the information con- tained his answers unless it could be shown that information would have been obtained even if the witness grand jury. Nothing had never testified before the in this suggests questions entirely record that answers to based grand jury transcript were not “fruits” of the testimony.7 Judge properly respondent’s

The District ruled that the an- swers could not have been introduced him at a sub- sequent prosecution any original criminal more than tes- timony respondent’s could have Moreover, been. if the necessary answers would be a link a chain that led to other information, then that information would also be “derived” prior testimony from the and likewise could not used at a prosecution. therefore witness had greater right privilege against no to assert a constitutional Cf. Harrison United opinion 392 U. S. 219. concur ring judgment in the Justice Blackmun seems assume inquiry “fruits” focuses on the state of mind rather than on the suggests historical derivation of the evidence. He if the witness response “elects” to answer a is not a fruit and question, his therefore is directly indirectly prior testimony. not derived from the Even approach, however, under that I question think the is whether any being witness has incrimi choice the matter. He is asked about that, nating testimony by hypothesis, repeat. Nev prefer he would ertheless, speak since he subpoena, is under must unless he has a valid privilege, nor the and neither the Constitution statute vests him power with to decide whether he does. proceeding in than he had in the second the self-incrimination jury proceeding grand itself.

h—I HH dispute respond- Although the fact that the does not Court scope immunity grant, of the within the answers were ent’s places great a reli- n. it nevertheless deal of ante, limiting scope in of an interest on “the Government’s ance my judgment grant,” immunity at 258. the Court ante, analysis. policy triple in this it uses First, error commits interpretation judgments an of the that could at most affect justify immunity in other cases to its erroneous statute use interpretation in this case. Second, prosecutorial interest in how the stat- it misunderstands interpreted third, in those other cases. And it ute should be holding in this enforcement costs of its overlooks obvious elaboration; The error not need second case. first does two do. immunity prosecutor to a

A does not offer sus- federal expects important pected testi- to obtain criminal unless prosecutor mony The not otherwise be available. that would immunity cases, in an offer that, realizes almost all —even prosecute sacrificing to use chance —means enterprise.8 The in the witness for his own role the criminal Kastigar: “The immunity provi As in the Solicitor General assured us enabling law purpose of passed sion case was not for the involved wit information from compel self-incriminating enforcement officials to Brief for United matters.” prosecute nesses and then them for routine 70-117, pp. 32-33. Kastigar v. United No. States O. T. passed the use emphasized Congress This fact was Divi- charge of the Criminal provision. Attorney The Assistant General matter, that, practical Department “[a]s sion of Justice testified statute, and he has been under this where witness has elected Government used, for the circumstance would be most unusual H. R. 11157 Hearings on prosecute him to him.” used turn around and House Committee 3 of the H. R. 12041 No. before Subcommittee Wilson). (statement (1969) of Will Sess., 47 Judiciary, Cong., 91st 1st will is what kind return on the society get question pros- ecutor’s Once the immunity. investment prosecutor pays he will normally wish immunity price, probe deeply that will the witness’ criminal implicate evidence associates as law in- thoroughly possible. primary enforcement the amount terest is maximize information that the wit- A ness broad construction of the provides. immunity grant serves that a narrow construction purpose; can motivate only to as possible.9 witnesses be as unresponsive Yet Court Government suggests prosecutors take a different attitude towards immunized witnesses. Even itself has not though the Government such a view promoted And of the of a member Commission Reform the Federal Criminal Law, testifying support statute, in of the stated: thing

“I probably ought think there is one about this that be other pointed immunity in grant going out and that is that most instances a willing to a going prosecuted be made witness who isn’t to be at all. probably important aspect That most of the whole matter. The just as protecting will have much of an interest in the interests person purposes of the who has served the in that re- law enforcement gard consequence person willingly as can be. As a for who fears has cooperated are, think, probably under the I more fanci- (statement Edwards). Id., Judge George ful than real.” 53-54 date, 1, 1976, predictions As of proved October these had true. On that Attorney Charge in Privacy at the Information of the Freedom of Unit Department Criminal Division wrote a letter to a research Justice that, reported Immunity scholar. The not main- letter while Unit did subsequently tain statistics on the number had of times witnesses been prosecuted testimony, in “if matters disclosed their immunized exist, Note, such instances Rev. they are rare.” 14 Am. Crim. L. (1976). 282, n. 46 in point The Solicitor in manner slightly General made this different Kastigar brief: practical per- “A of a refraining subsequent prosecution reason for in provides son who has a vital interest government information is that the assuring concerning crim- unimpeded the continued of information flow activities, inal if he and this interest be furthered a witness believes prosecuted.” Kastigar in will be Brief for United United States 70-117, T. p. O. No. 34. in case or by argument this proceedings in the deposition that when suggests Court Court,10 the opinion witness order to obtain particular immunizes a prosecutor to indict the after- an intent he harbors information, that the witness remain therefore prefer would wards and immunized.11 being as before of prosecution the same peril the witness presume human nature Yet it defies truce, a 24-hour during knowing cooperative as just would thereafter, as immediately will resume that hostilities treaty. signing peace be after its assertion explain applying does the Court Nor Kastigar “in construed in it is and as was statute as written immu- with transactional deponent could invest effect Ante, all the Transactional is not at at 260. nity.” immunity would require pros- issue here. Transactional already an case that he had open-and-shut ecutor forfeit independently. Kasti- immunity, explained built Use amicus curiae provides regularly us with briefs The Solicitor General implicated. are in in the enforcement interests cases which Government’s objection no to apparently He filed no such in this case and asserted brief of grand jury transcript questioning of as a basis for petitioners’ use the witnesses, including respondent. 11 8, supra, ante, testimony quoted The in n. describes See 260. suggestion fanciful real.” For a that is more real than as “more than view fanciful, Attorney for the the of the Assistant General Crimi see Department and Hearings nal Division of the of in on H. R. 11157 Justice Wilson). (statement supra 8, That testi H. R. n. at 41-42 of Will mony prototypical immunity would be identified the situations where use already in prosecutor where to someone who is valuable: the wants induce testify conspiracy exchange a reduction in prison to about a different in for sentence; existing suspect’s attorney offers his client’s assist where a are exchange “in crime which we type ance for some of from that prosecutor’s an investigating”; investigation has focused on where the it is more agent principal policy of a that “and we decide as a matter important prosecute a minor principal agent”; to and where than actor, testify loyalty actor to to in the case of a major refuses out of in “[ojbviously interested exten bookie’s the Government isn’t customers — bets, you so people simply placed sive 200 300 use or who immunity grant person.” there to make case the central gar and as to the allows the granted respondent, prosecutor I to retain that case.12 have found no absolutely evidence, today, the Court cites none to support implicit sug- “use substituted gestion Congress immunity” for “trans- in actional order to allow immunity” prosecutors to ad- take repetitions vantage testimony.13 The Court’s reference to “transactional immunity” sug- fear ordering answer a gests respondent deposi- tion somehow question may jeopardize legitimate efforts him. Consideration the facts of this prosecute particular case demonstrates that the apparent Court’s fear is baseless. Unless some has an prosecutor already basis for independent prosecuting respondent nothing record sug- —and any such gests independent basis exists —the Govern- already agreed ment has that he will not be prosecuted engaging illegal discussions with Fred price Renshaw and Dick If, Herman the Alton Box Board. at the deposition, he is to confirm required that such discussions took place, explained As the Solicitor Kastigar, General there be occasions in which an unexpectedly (by immunized witness is led cross-examination trial, by grand juror crime, questions) to a new “with about respect prosecution may possess overwhelming to which the evidence.” Kastigar Brief for United United States O. T. No. “ 70-117, Although p. give 36. willing the Government was ‘absolute immunity’ as to matter in “a limited testified]” to which the witness area,” independent the Government should not an be made abandon Ibid. case. (revised Attorneys’ I, Manual, p. United States Title Ch. 15, 1981), explains Dec. why prefers use real reasons the Government immunity to immunity: transactional

“[T]hey have, advantages circumstances, significant under appropriate over former they provide gra- in no immunity’ ‘transactional statutes that tuity testifying witness, complete to a they encourage giving more relates, proscribing and everything [the] use of they permit prosecution still a in case it can the rare where the witness supporting clearly only shown that the from inde- evidence was obtained pendent sources.”

292 liability? his criminal If affect confirmation how can that demonstrably independent prosecutor basis for has a some participation respondent’s in proving discussions, his demonstrably that basis less not make will confirmation independent prosecutor independent.14 if has an And participated showing respondent in the dis- that the basis demonstrably independent no will be less that basis cussions, identify place, required respondent time, and is if the participated persons in the discussions. who other not overlook the societal Furthermore, one should costs— expansion of the Court’s the Fifth costs—of law enforcement obtaining public in the full The interest Amendment. knowledge with inner of a witness candid conspiracy signific workings price-fixing is both real and of a relatively Conceivably, brief account the basic ant.15 per conspiracy might have sufficient to been structure per grand jury parties to indict other and also to suade the plead guilty or some those defendants to to enter into suade grand if with the Government.16 Even other settlement jury description price- transcript is confined a brief of a Kastigar, argument seemed to assume In the Solicitor General independent adequate had an source that an demonstration that evidence normally proof grand jury tes involve the source antedated supra. jury testimony timony. respondent’s grand See n. this case given much in 1981. It would be was 1978 and was taken prove pre- possible easier to that the for a future had basis pre-1978 1981 source than a source. supplements gen interest in the text enforcement described hin public factfinding, eral also interest in accurate an interest Hardwicke’s oft- holding. dered the Court’s Lord Cf. Chancellor evidence,” 12 phrase, right every man’s quoted public “the has a (1812), Hansard, Parliamentary History England quoted T. Kastigar v. United 406 U. 443. S. penalty accept or a modest It not unusual to a civil consent decree antitrust laws. exchange charges under the for the dismissal interest may well example, public for arrangement, fixing who have been injured by allowing private parties be served the details arrangement.17 into thereby inquire of the Fifth Amendment scope that The Court assumes expanded be order to serve so- in this case should privilege I do not mode accept enforcement interests. this ciety’s law I But if I interpretation. did, even Amendment theoretical risk that compelled testimony would find the to be plainly could a out- hamper potential in allowing the enforcement interest weighed by deposi- And, significantly, forward. even the theo- go slight tion is presented retical risk that concerns the Court not case, in which no information is incriminating new called by the deposition questions.

H-( HHHH Court makes curious that the Fifth argument must extend to that privilege testimony could not incriminate a witness because otherwise the witness will be to the risk of put whether a court in a later “predicting” proceeding agree was ante, suggests, 259-260, The Court at that cross-examination some poses unique problems how in this it un case. Yet concedes that it not usual for valid assertion of Fifth Amendment to inhibit cross- examination Ante, as to collateral credibility. matters such only n. 19. It is thus concerned might that cross-examination not be allowed on matters about which the witness testified on direct examina tion because such produce not cross-examination will information elicited on direct. I do why understand such cross-examination would not allowed; if direct, even information were not itself elicited on would concern a matter required about which the witness was direct and would thus be derived from the way same as the possible direct even if it examination. But were a valid assertion of privilege might the Fifth Amendment so restrict cross- examination that trial, answer would be inadmissible surely not a sufficient privilege against reason to a constitutional establish giving the direct testimony. Ante, I 261-262. do immunity. of the the scope within is the Court entitled troubles “risk” that the that not agree Amendment. Fifth the under protection do deposition chair at can respondent’s in the A witness or he can assert a answer he can things: of two one he is more answers, obviously If he privilege. view of the use narrow risk” under Justice “at Blackmun’s in broad one adopted the than under statute Kastigar. does not dispute the Court reason, For that ques- had answered deposition respondent if the fact that not him.18 against could be used his answers case, in this tions however, in to the reacting company, I part The Court and if he asserts Fifth Amendment witness faces that the risks privilege. concludes an

If that supervising the court or derived” from indirectly not “directly answer is of the it must the assertion testimony, uphold immunized and the analysis Fifth Amendment under both privilege my court con- hand, on the other If, supervising Court’s. or indirectly that the is derived” from “directly cludes answer I believe it must the asserted testimony, reject distinct analytically Court for two privilege. disagrees, reasons.

First, the Court court suggests might that supervising directly make mistake whether the is deciding It indirectly Judge derived. this case suggests Singleton the de- might have been able to “predetermine cision the court in a on the true, course, having It testi a witness will risk his extended mony against used him later if not derived he makes statements that are grand jury from his testimony. assumption But counsel would identify competence not be able to “danger those areas” our demeans problem trial bar. The essentially raised such the same problem presented might when witness testifies in a manner that exploited doubt, prudent to uncover evidence him. When in always having counsel can ruling by obtain an the wit authoritative court ness assert privilege. the Fifth Amendment question Government has met its burden of whether the proposes proving to use is that ‘the evidence derived from a wholly independent legitimate source testi- explain mony.’” at 261. The Court does not Ante, what might prosecutor subsequently sort of evidence be able to produce “wholly show the answers to be that would inde- pendent”; is difficult to conceive indeed, it how such evidence possibly importantly, could exist this case. More why explain the risk Court does not of error this situation is different from the identical risk that exists whenever a argument require is asserted. The Court’s every judge always privilege, trial to honor a claim of no mat- may guard ter how obvious it be that the claim lacks merit, against being wrong found later.19 suggests, Second, Court with Justice Marshall, require that it would be unfair to the witness to answer be- “ incriminating ‘[f]urther cause evidence that is derived from compelled testimony always cannot be traced back to its quoting source.’” Ante, n. 22, ante, at 268. Yet argument applies equal such an with force to the entire concept immunity. holding Kastigar of use Our rests squarely proposition may on the that one not assert a Fifth Amendment might on the basis of the risk that evidence Kastigar, not be traced back to its source. Cf. 406 dissenting). 468-471 (Marshall, if Even S., U. J., prepared Court proposition, were now to retreat from that surely proper case is respondent not the vehicle. The only ratify here was asked or confirm facts that were already known. clearly appears On this record, that the

19The Court is somewhat misleading when it discusses the risk that a judge may trial erroneously reject an priv assertion of a Fifth Amendment ilege in paragraph witness, a that discusses by risks borne Such a risk is obviously by borne government, which not make use of testi mony that is “wrongfully compelled” by judge. Meyers, Maness v. U. S. (White, J., result). Garrity New concurring in Jer Cf. sey, 385 U. S. (government may not use statements obtained under threat office). public removal from possibly questions specific could not asked to the answers investiga- prosecution, any or even for provide basis grand already provided jury beyond was what tion, testimony.20 perfectly re- summary, clear on this record that the isit (a) protected

spondent’s would be (b) immunity; statutory used re- could (c) proceeding; spondent could in a provide prosecutor with information he does not al- not ready might A court not decide some concern have. correctly justify disposition an incorrect cannot other case us. the case before respectfully

I dissent. 20 TheCourt also speak notes that requiring respondent increases may the risk that he perjured grand jury, reveal that he himself before as well as risk liability mis exposed be for his civil Ante, deeds. potential liability n. 22. has never But civil been held to establish a Fifth Cf. Ullmann United v. privilege. Walker, S., Brown 430-431; U. 605-606. 161 U. S. respondent And has suggested never that he asserted avoid risk why perjury; explain not the Court does that risk could evaluated case when and if it is asserted. case notes As Justice Marshall requiring a witness justification be for there “Whatever investiga- testimony incriminating give in aid of criminal immunity, granted use there has after the Government tion give compelling justification a witness to for is no similar private litigant testimony incriminating the benefit immunity.” not chosen to has when the Government Post, at 267. compelling is immu- The result of —whether interests, that the or excluded—is Government’s nized judicial suffer. Reliance on exclusion witness’, well as the be inconsistent with the con- nonimmunized granting gressional policy leaving to the Branch. Executive

Case Details

Case Name: Pillsbury Co. v. Conboy

Court Name: Supreme Court of the United States

Date Published: Jan 11, 1983

Citation: 459 U.S. 248

Docket Number: 81-825

Court Abbreviation: SCOTUS