UNITED STATES of America, Plaintiff-Appellee, v. Vytautas GECAS, Defendant-Appellant.
No. 93-3291.
United States Court of Appeals, Eleventh Circuit.
Aug. 26, 1997.
For all the foregoing reasons, I would reverse the district court‘s dismissal of Davis‘s Title IX claim against the Board.
E. Bryan Wilson, Asst. U.S. Atty., U.S. Dept. of Justice, Tallahassee, FL, Robert G. Seasonwein, Joseph C. Wyderko, U.S. Dept. of Justice, Office of Special Investigations, Washington, DC, for Plaintiff-Appellee.
TJOFLAT, Circuit Judge:
Appellant, Vytautas Gecas, is a Lithuanian national who has lived in the United States as a resident alien for thirty-four years. The United States subpoenaed oral and written testimony from Gecas concerning allegations that he participated in the persecution of persons because of their race, religion, or political opinion during World War II. Such conduct would render Gecas deportable. See
The United States petitioned the district court for an order to enforce its subpoena, and the district court granted the Government‘s petition. See United States v. Gecas, 830 F.Supp. 1403, 1423 (N.D.Fla.1993). Gecas appealed, claiming that his silence is protected by the constitutional privilege against self-incrimination. A divided three-judge panel reversed the district court‘s order, see United States v. Gecas, 50 F.3d 1549, 1567 (11th Cir.1995), and held that Gecas was entitled to the equitable relief provided by the privilege because he had a real and substantial fear of conviction under foreign law.1 We granted rehearing en banc,2 and now affirm the district court‘s order compelling Gecas to testify.
We examine the underlying facts in part I. We determine in part II that the conduct with which Gecas is charged could form the basis of a criminal conviction under foreign law. We also find that Gecas faces a real and substantial risk of actually being convicted under foreign law based on the alleged conduct. Therefore, in part III we turn to the issue of whether a real and substantial fear of foreign conviction is a valid basis for the invocation of the privilege against self-incrimination.
We start with the language of the Fifth Amendment‘s Self-Incrimination Clause and find it ambiguous. We then turn to precedent, and discover that the Clause, as currently interpreted, does not apply to Gecas. Because Gecas argues that the original intent of the Self-Incrimination Clause authorizes his invocation of the privilege, we discuss in part IV the history of the privilege against self-incrimination. We conclude in part V that the privilege against self-incrimination was not intended to apply here.
I.
According to Gecas’ immigration file, he was born on September 25, 1922, in Naumiestis, a town in the Taurage district of Lithuania. On August 2, 1962, Gecas applied at the American Consulate in Liverpool, England, for a visa to enter the United States. Gecas stated in his application that from 1938 to 1944 he lived in Naumiestis as a “pupil,” and that from 1944 to 1947, he lived in Lubeck, Germany, in a camp for “displaced persons“-a refugee camp. The application also stated that he moved to England in 1947, where he obtained employment first as a farm worker and then as a miner.
Gecas obtained a four-month visa from the Consulate on August 2, 1962. On October 23, 1962, at the age of thirty-nine, Gecas arrived in New York City on the Queen Elizabeth and was admitted to the United States. Upon entry, Gecas apparently went to Chicago, Illinois, to live with his cousin, a naturalized American citizen. In 1964, Gecas moved to a separate residence in Chicago, where he lived until October 1989. Gecas
On July 25, 1991, the Office of Special Investigations (the “OSI“)3 of the United States Department of Justice issued to Gecas an administrative subpoena.4 See generally
A United States Marshal served the OSI‘s subpoena on Gecas on July 30, 1991. On September 12, 1991, OSI investigators interviewed Gecas in the presence of his attorney. Gecas was placed under oath, and provided his name, his current address in Florida, and his previous address in Illinois. The OSI then asked Gecas some 162 other questions. These questions generally concerned Gecas’ biographical data, such as alleged alternate spellings of his name, and Gecas’ activities during World War II, such as his alleged participation in wartime atrocities against Jewish persons. To each question, Gecas responded as follows: “I decline to answer on the ground that the answer might tend to incriminate me.” Gecas produced no documents or photographs other than his alien registration card.
On February 19, 1992, the United States petitioned the district court for an order to enforce the OSI‘s administrative subpoena. On August 11, 1993, the district court granted the Government‘s petition. See Gecas, 830 F.Supp. at 1423. The district court found that Gecas faced a real and substantial fear of criminal conviction in Lithuania, Germany, or Israel. See id. at 1411. Each of these states, the court noted, had enacted a law under which Gecas could be convicted. The court found that the OSI had previously provided information to foreign prosecutors of deported war criminals. Therefore, the court concluded that Gecas faced a real and substantial fear of foreign conviction.
Despite the legitimacy of Gecas’ fear, however, the district court granted the Government‘s petition. The district court held that the privilege against self-incrimination contained in the Fifth Amendment to the United States Constitution does not apply to foreign prosecutions. See id. at 1423. The district court examined at length Supreme Court precedent and concluded that the privilege is not a “personal ‘right’ conferred upon persons within the protection of American law.” Id. at 1421. Rather, according to the district court, the privilege was designed to protect the individual from prosecutorial overreaching and inhumane treatment at the hands of government. See id. at 1421-22. The court reasoned that neither purpose would be served by allowing the invocation of the privilege here because “[t]he privilege is a limitation only upon the power of the United States and its component states,” not upon foreign governments. Id. at 1422. The court also noted that extending the privilege to foreign prosecutions would severely weaken domestic law enforcement. Therefore, the district court granted the Government‘s petition to enforce the OSI‘s administrative subpoena.
II.
The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person... shall be compelled in any criminal case to be a witness against himself.”
A.
The district court held that the information sought from Gecas would incriminate him under the laws of Israel, Germany, and Lithuania. See Gecas, 830 F.Supp. at 1408. The district court‘s interpretation of Israeli, German, and Lithuanian law is a question of law subject to review de novo. See
Germany does not specifically punish crimes against Jewish persons, crimes against humanity, or war crimes. Germany instead prosecutes Nazi war criminals under its murder statute, § 211, Nr. 1 StGB.6 Unlike the Israeli statute, section 211 on its face does not apply extraterritorially, but Germany has apparently used the law to prosecute former German citizens who committed war crimes outside the territorial boundaries of Germany. See, e.g., Douglas Martin, Canada Orders Extradition of Accused Nazi, N.Y. Times, Nov. 5, 1982, at A3 (describing the extradition of a former Gestapo officer to Germany to stand trial for the murder of 11,584 Jews in Lithuania). Gecas, however, is not a former German citizen, and German law appears unsettled as to whether section 211 applies to non-Germans who commit murder outside Germany. See generally Letter from Jürgen Schmude, Minister of Justice, Federal Republic of Germany, to William F. Smith, United States Attorney General 1 (Feb. 12, 1982) (“Just as in American law ‘jurisdiction’ basically exists only for criminal acts perpetrated in one‘s own territory, so there is also no German jurisdiction applicable to those punishable acts, under consideration here [war crimes], committed by foreign nationals in occupied territory without the addition of further exceptional circumstances.” (emphasis added)). The issue is close, but we find that the information sought from Gecas could potentially incriminate him under section 211.
According to Gecas, Lithuania punishes Nazi war crimes under the Law Concerning Responsibility for Genocide of the People of Lithuania, Art. 1 (1992) [hereinafter Lithuanian Genocide Law].7 This law applies to “[t]he murder or torture of people in Lithuania [or] the deportation of her people... during the period of occupation by Nazi Germany.” Lithuanian Genocide Law, Art. 2 (1992). We hold that affirmative responses to the OSI‘s questions would incriminate Gecas under the Lithuanian Genocide Law. We therefore affirm the district court‘s holdings that the information sought by the OSI through their questions would incriminate Gecas under the laws of Israel, Germany, and Lithuania.
B.
The district court also found that Gecas faced a real and substantial likelihood of prosecution and conviction in Israel, Germany, and Lithuania. See Gecas, 830 F.Supp. at 1411. The district court‘s determination of the likelihood of conviction is a question of fact subject to review for clear error. See
Nevertheless, few witnesses who invoke the privilege based on a fear of foreign conviction face imminent expulsion of the sort anticipated by Gecas. The OSI exists to expel war criminals from the United States, see
Once that information is transferred, Gecas faces potential conviction in Israel, Germany, and quite possibly Lithuania.10 As discussed above, both Israel and Germany have prosecuted alleged war criminals like Gecas. Gecas’ ability to select his destination upon deportation offers little protection. Under
Even if Gecas could avoid deportation, he could be extradited under the treaties the United States maintains with Israel, see Convention on Extradition, Dec. 10, 1962, U.S.-Isr., art. 1, 14 U.S.T. 1707, 1707, Germany, see Treaty Concerning Extradition, June 20, 1978, U.S.-F.R.G., art. 1(2)(a), 32 U.S.T. 1485, 1485, and Lithuania, see Treaty on the Extradition of Fugitives from Justice, Apr. 9, 1924, U.S.-Lith., art. 1, 43 Stat. 1835, 1835. Foreign governments have pursued the extradition of those who murdered civilians at the direction of the Germans during World War II. See, e.g., Demjanjuk v. Petrovsky, 10 F.3d 338, 340 (6th Cir.1993) (noting that Israel sought and obtained the extradition of an alleged Nazi prison guard), cert. denied, 513 U.S. 914 (1994). If Gecas’ compelled testimony substantiates the OSI‘s allegations, it is distinctly possible that Gecas would face extradition for prosecution to Israel, Germany, or Lithuania. Therefore, we hold that the district court did not err when it concluded Gecas faces a real, substantial, reasonable, and appreciable fear of foreign conviction.
III.
We now consider whether a real and substantial fear of foreign conviction is a valid basis for the invocation of the privilege against self-incrimination. The Fourth and Tenth Circuits have refused to extend the privilege to prevent this alleged harm. See United States v. (Under Seal), 794 F.2d 920, 926 (4th Cir.), cert. denied sub nom. Araneta v. United States, 479 U.S. 924, 107 S.Ct. 331, 93 L.Ed.2d 303 (1986) [hereinafter Araneta ]; In Re Parker, 411 F.2d 1067, 1070 (10th Cir.1969), vacated as moot sub nom. Parker v. United States, 397 U.S. 96 (1970). The North Dakota Supreme Court has similarly refused to expand the privilege‘s scope. See Phoenix Assurance Co. of Canada v. Runck, 317 N.W.2d 402, 413 (N.D.), cert. denied, 459 U.S. 862 (1982).
However, several district courts, including one district court in this circuit, have held that the privilege may apply in this situation. See Yves Farms, Inc. v. Rickett, 659 F.Supp. 932, 940 (M.D.Ga.1987); United States v. Lileikis, 899 F.Supp. 802, 809 (D.Mass.1995); Moses v. Allard, 779 F.Supp. 857, 882 (E.D.Mich.1991); Mishima v. United States, 507 F.Supp. 131, 135 (D.Alaska 1981); United States v. Trucis, 89 F.R.D. 671, 673 (E.D.Pa.1981); In re Cardassi, 351 F.Supp. 1080, 1086 (D.Conn.1972). In addition, the Second Circuit recently held that “the Fifth Amendment privilege against self-incrimination may be invoked by a witness who possesses a real and substantial fear of foreign prosecution.” United States v. Balsys, 119 F.3d 122 (2nd Cir.1997). Because neither the Supreme Court nor the Eleventh Circuit has decided the issue, however, we treat it as a matter of first impression.
A.
The plain language of the Self-Incrimination Clause provides no conclusive answer. The Clause protects a “person” from being “compelled in any criminal case to be a witness against himself.”
A deportation hearing itself is a civil proceeding, not a criminal proceeding. See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952); Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028-29, 37 L.Ed. 905 (1893). For this reason, the Government need not give to deportees all of the constitutional protections guaranteed to criminal defendants. See Lopez-Mendoza, 468 U.S. at 1038-39; see,
The Supreme Court, however, has held that a witness facing a legitimate possibility of conviction (in either the current or a subsequent proceeding) may invoke the privilege against self-incrimination “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.” Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). Thus, for example, the Court has held that a bankruptcy proceeding becomes a “criminal case,” for purposes of the Self-Incrimination Clause, as long as the testimony sought from the witness “might tend to subject to criminal responsibility him who gives it.” McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924). This language suggests that, regardless of the noncriminal character of a deportation proceeding, it might become a “criminal case” under certain circumstances. We therefore turn to precedent to determine whether the current deportation proceeding involving Gecas is a “criminal case” within the meaning of the Fifth Amendment‘s Self-Incrimination Clause.
B.
1.
The Self-Incrimination Clause protects a witness against the infliction of criminal penalties on the basis of compelled, testimonial self-incrimination.11 See Kastigar, 406 U.S. at 453. The Clause does not protect a witness against the disclosure of facts which might “disgrace him or bring him into disrepute.” Brown v. Walker, 161 U.S. 591, 598, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896). The Clause does not shield a witness from the “loss of [his] job, expulsion from labor unions [or] general public opprobrium” stemming from his incriminating testimony. Ullmann v. United States, 350 U.S. 422, 430, 76 S.Ct. 497, 502, 100 L.Ed. 511 (1956). The Clause does not even prevent the prosecution of a witness based on coerced admissions. See Kastigar, 406 U.S. at 453. The Clause only protects against the actual “infliction of criminal penalties on the witness“-a criminal conviction-based on self-incriminating testimony. Id. For this reason, the Supreme Court has stated that a violation of the Self-Incrimination Clause does not necessarily occur at the time the self-incriminating testimony is compelled. The actual violation, if any, occurs only at a witness‘s own criminal trial. See United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 1060, 108 L.Ed.2d 222 (1990).
Courats can prevent the occurrence of this harm in one of two ways. First and most basically, courts presiding over a criminal trial must exclude from evidence compelled, testimonial self-incrimination and its fruits. See Murphy v. Waterfront Comm‘n of New York Harbor, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964). For example, if overzealous law-enforcement officers unfairly coerce a damaging admission from the defendant, the court must exclude from evidence that admission and its fruits. See Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). Similarly, if another court compelled the defendant‘s testimony12 at a prior proceeding-pursuant to a grant of immunity from prosecution, for example-a court presiding over the defendant‘s subsequent trial must also
Second, courts can prevent the infliction of criminal penalties based on compelled, testimonial self-incrimination by refusing to force witnesses to testify against their own penal interest. See, e.g., United States v. Saline Bank of Virginia, 26 U.S. (1 Pet.) 100, 104, 7 L.Ed. 69 (1828) (affirming the denial of the Government‘s discovery motion because “a party is not bound to make any discovery which would expose him to penalties“). This prophylactic rule13 prevents the infliction of criminal penalties on the basis of self-incrimination by keeping the testimony hidden from the opposing party. What the movant does not know it cannot later use.
When a court considers a motion to compel testimony, it acts as a court of equity, balancing the risk of a violation of the Self-Incrimination Clause against the Government‘s right to the evidence of every citizen. See Mason v. United States, 244 U.S. 362, 364, 37 S.Ct. 621, 622, 61 L.Ed. 1198 (1917). If the court concludes, based on the circumstances of the case, that disclosure of the testimony would not lead to a conviction that violates the Self-Incrimination Clause, then the court may force the witness to speak. See, e.g., Murphy, 378 U.S. at 79 (holding that the defendants could be compelled to answer the Government‘s questions because a grant of state-law immunity shielded them from the use of their testimony and its fruits in federal court).
If, on the other hand, the court finds that compelling the testimony will likely lead to a conviction that violates the Self-Incrimination Clause, then the court must refuse to compel the witness to testify. See Pillsbury Co. v. Conboy, 459 U.S. 248, 256-57, 103 S.Ct. 608, 614, 74 L.Ed.2d 430 (1983). Thus, courts use two basic mechanisms for enforcing the Clause: excluding coerced testimony at a criminal trial and denying a motion to compel disclosure. Both mechanisms are designed to prevent conviction of an offense revealed through compelled testimony-the only harm against which the Self-Incrimination Clause protects.14
The Fifth Amendment does not apply to foreign court proceedings involving foreign citizens. See Verdugo-Urquidez, 494 U.S. at 269. The Supreme Court has extended at least some of the protections of the United States Constitution to foreign citizens residing in the United States. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) (applying the Due Process Clause of the Fourteenth Amendment to resident aliens). The Court has also applied the Bill of Rights to the criminal prosecution of American citizens conducted by the United States in foreign lands. See, e.g., Reid v. Covert, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148 (1957) (holding that the United States Government must abide by the Constitution when it prosecutes civilian dependents accompanying members of the armed forces overseas).
The Court, however, has refused to apply the procedural protections of the Constitution to our government‘s treatment of foreign citizens in foreign countries. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 771, 70 S.Ct. 936, 940, 94 L.Ed. 1255 (1950) (“[I]n extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien‘s presence within its territorial jurisdiction that gave the Judiciary power to act.“); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255 (1936) (“Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens.“). The Court has also refused to apply our notions of due process to foreign court proceedings against American citizens who have committed foreign crimes outside the United States. See, e.g., Neely v. Henkel, 180 U.S. 109, 123, 21 S.Ct. 302, 307, 45 L.Ed. 448 (1901) (“When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.“).
By necessary implication, the United States Constitution places no restraints at all on a foreign government‘s treatment of its own citizens who have allegedly committed foreign crimes abroad. See Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84, 42 L.Ed. 456 (1897); see, e.g., United States ex rel. Steinvorth v. Watkins, 159 F.2d 50, 51 (2nd Cir.1947) (holding that a United States court will not review the Costa Rican government‘s cancellation of appellant‘s Costa Rican citizenship). As Justice Kennedy wrote in United States v. Verdugo-Urquidez, “[t]he Constitution does not create any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory.” Verdugo-Urquidez, 494 U.S. at 275 (Kennedy, J., concurring). Therefore, a foreign court cannot violate the Fifth Amendment to the United States Constitution when it inflicts criminal penalties on a foreign national based on compelled, testimonial self-incrimination.
C.
Applying these principles to the current appeal, we conclude that a proceeding becomes a “criminal case” only when a witness faces conviction on the basis of his testimony in a jurisdiction subject to the Fifth Amendment of the United States Constitution. Gecas faces no possibility of a criminal conviction in the United States. He only faces trial and conviction in Israel, Germany, or Lithuania. The United States Constitution does not prohibit foreign countries such as these from trying and convicting their own citizens on the basis of self-incrimination. Therefore, Gecas does not face the kind of conviction proscribed by the Self-Incrimination Clause, and his deportation proceeding is not a “criminal case.” The district court did not err by granting the Government‘s motion to compel Gecas to respond to the OSI‘s questions.
Gecas cites Murphy v. Waterfront Comm‘n of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), for the proposition that he should not be forced to testify regardless of which sovereign intends to use his testimony to obtain a conviction. In Murphy, the Waterfront Commission of New York Harbor subpoenaed the defendants to testify concerning a work stoppage at several New Jersey piers. See id. at 53. The defendants asserted the privilege against self-incrimination and refused to testify. The defendants were granted immunity from prosecution under the laws of New York and New Jersey, but they persisted in their refusal to testify and were cited for contempt. Their appeal reached the United States Supreme Court.
The defendants in Murphy argued that they could refuse to testify because the grant of state-law immunity did not prevent their prosecution under federal law. They contended that federal prosecutors could use their testimony to initiate a federal prosecution. The Supreme Court held that the defendants could be forced to testify before the Waterfront Commission because the Self-Incrimination Clause barred the federal government from using their state testimony or its fruits to obtain their conviction in federal court. See id. at 79.
Gecas contends that his silence is protected because Murphy applied the Self-Incrimination Clause to the jurisdiction compelling the testimony-the state tribunal-as well as to the jurisdiction using the testimony-the federal tribunal. According to Gecas, “[t]he law of the sovereign that ultimately (makes) use of the compelled testimony [is] not controlling. The controlling fact [is] whether the witness is compelled to testify by a government whose law grants to him the right not to incriminate himself.” Brief for Appellant at 14. Hence, Gecas claims that the Clause prohibits an American court from compelling his testimony even when it will be used, if at all, only in a foreign proceeding. We disagree.
To understand the holding of Murphy, we must place it in context. In Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), the Supreme Court held that the Fifth Amendment‘s privilege against self-incrimination was not one of the rights made applicable to the states by the Fourteenth Amendment. Id. at 110. State-court defendants therefore had to rely on state-law provisions securing the privilege against self-incrimination. The decision in Twining in part gave rise to a series of decisions limiting the scope of the privilege to the jurisdiction in which it was invoked. See, e.g., Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408 (1944), overruled by Murphy v. Waterfront Comm‘n of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); see also id. at 490 (“[O]ne of the settled principles of our Constitution has been that these Amendments[, including the Fifth Amendment‘s Self-Incrimination Clause,] protect only against invasion of civil liberties by the Government whose conduct they alone limit.“).
On June 15, 1964, the same day on which Murphy was decided, the Court overruled Twining in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The Court held that the Fifth Amendment‘s Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment. Id. at 3. The application of the Fifth Amendment to both the federal and state governments raised the issue of whether the Fifth Amendment also applied between those governments. See Murphy, 378 U.S. at 53.
The Court chose Murphy as a vehicle for unifying the meaning of the privilege against self-incrimination within the United States. The Malloy Court cited Murphy and noted that “[i]t would be incongruous to have dif-
The Murphy Court noted this interrelationship:
In every “whipsaw” case, either the “compelling” government or the “using” government is a State, and, until today, the States were not deemed fully bound by the privilege against self-incrimination. Now that both governments are fully bound by the privilege, the conceptual difficulty of pinpointing the alleged violation of the privilege on “compulsion” or “use” need no longer concern us.
Id. at 57 n. 6. In this case, by contrast, there has been no recent decision applying the Clause to each of the governments involved. To the contrary, Supreme Court precedent indicates that Israel, Germany, and Lithuania are not bound by the privilege at all. They are not “States.” We must therefore reach the question that the Murphy Court avoided: whether a violation of the privilege occurs upon compulsion of the testimony or upon its use.
Fortunately, in the years since Murphy, the Supreme Court has answered this question for us. The harm is the use of the testimony, not its compulsion. See Verdugo-Urquidez, 494 U.S. at 264 (citing Kastigar, 406 U.S. at 453). Gecas’ testimony will be used, if at all, in a jurisdiction to which the Self-Incrimination Clause does not apply. Accordingly, we hold that Gecas cannot invoke the privilege before the compelling sovereign. We view this holding as consistent with the framework established in Murphy.
Gecas also claims support for his position from the Murphy Court‘s discussion of three old English cases: United States v. McRae, 3 L.R. 79 (Ch.App.1867); Brownsword v. Edwards, 28 Eng. Rep. 157 (Ex. 1750); and East India Co. v. Campbell, 27 Eng. Rep. 1010 (Ex. 1749). In analyzing the earliest of these cases, Campbell, the Murphy Court stated that “the privilege against self-incrimination protected a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction.” Murphy, 378 U.S. at 58 (emphasis added). The Murphy Court wrote later in its opinion that “we now accept as correct the construction given the privilege by the English courts.” Id. at 77. Gecas reads such language as an endorsement of his position. A conviction in Israel, Germany, or Lithuania would be a conviction in “another jurisdiction,” so Gecas argues that Murphy proscribes court compulsion of his testimony in the United States.
Upon closer examination, however, Campbell, Brownsword, and McRae lend little support to Gecas’ invocation of the privilege. In Campbell, the Court of the Exchequer considered a motion to compel the defendant to disclose how he obtained possession of the plaintiff‘s goods. See Campbell, 27 Eng. Rep. at 1010. The defendant answered that disclosure of this information would subject him to criminal penalties in India, which at that time was a colony of Britain. See id. The court denied the motion on the ground that “a jurisdiction is erected in Calcutta for criminal facts, where [the defendant] may be sent to government and tried.” Id. at 1011. Thus, Campbell dealt with “disclosures which would have been incriminating under a separate system of laws operating within the same legislative sovereignty.” Murphy, 378 U.S. at 82 n. 1 (Harlan, J., concurring in the judgment).
So construed, Campbell and Brownsword directly support the holding of Murphy, which applied the privilege between jurisdictions within the United States. Campbell and Brownsword, however, did not consider the applicability of the privilege between separate, sovereign nations. Hence, they do not support Gecas’ invocation of the privilege here.
The third case, McRae, did deal with separate nations. In that case, the United States itself sued McRae in England to recover funds McRae collected in England as an agent for the Confederacy during the Civil War. See McRae, 3 L.R. at 79. The United States moved to discover from McRae how much money he accepted on behalf of the Confederacy. McRae claimed that the United States had passed a law confiscating all of the property of the Confederacy. He argued that telling the United States how much he collected on behalf of the Confederacy would enable the United States to forfeit an equivalent amount of McRae‘s American property-even if McRae prevailed in the English court. Given this unusual scenario, the court denied the motion: “The United States coming into our Courts must be subject to every rule of evidence which prevails in them, and, amongst others, to that which protects a witness from exposing himself to penalties by his answer.” Id. at 87.
Apart from the obvious factual distinctions between McRae and the present case, Parliament overruled McRae four years after Murphy was decided. In 1968, Parliament reviewed the English case law, including McRae, and limited the privilege against self-incrimination to potential criminal liability under the laws of the United Kingdom. See
Even assuming that the Murphy Court‘s discussion of eighteenth- and nineteenth-century English case law supports Gecas’ invocation of the privilege, we view this discussion as dicta. See Murphy, 378 U.S. at 81-82 & n. 1; In Re Parker, 411 F.2d at 1070. As noted above, the defendants in Murphy did not face potential conviction under the laws of another sovereign nation. They faced potential conviction in a different court within our unified federal system. Therefore, any discussion in Murphy suggesting that the possibility of a foreign conviction permitted the invocation of the privilege could not have been necessary to the Court‘s decision. Murphy does not foreclose our own consideration of whether a fear of foreign conviction can justify invocation of the Self-Incrimination Clause.
2.
Gecas argues in the alternative that the United States itself is both the compelling and the using sovereign. He claims that the OSI seeks to circumvent the Clause by orchestrating a foreign prosecution based on the testimony the OSI seeks here. Gecas contends that cooperation in this case among the OSI and the governments of Israel, Germany, and Lithuania transforms these governments into agents of the United States. As agents, these foreign governments are, according to Gecas, subject to the constraints of the Self-Incrimination Clause. See generally United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980) (suggesting that the failure of foreign police to give Miranda warnings could violate the Fifth Amendment if the foreign police were acting as agents of the United States). He argues that the Clause
The record suggests that the OSI may turn over its file on Gecas to whatever foreign government requests it. This type of intergovernmental cooperation, while it increases the chance Gecas will be convicted abroad, does not render the requesting government an agent of the United States. See, e.g., United States v. Behety, 32 F.3d 503, 511 (11th Cir.1994) (holding that Guatemalan officials did not become agents of the United States when they stopped and searched the defendants’ boat on a tip from a DEA agent and then allowed other DEA agents to videotape them searching the defendants’ boat), cert. denied, 515 U.S. 1137 (1995); Birdsell v. United States, 346 F.2d 775, 782 (5th Cir.) (holding that Mexican police were not acting as agents of the United States when “American police officers gave information leading to the arrest and search” of the defendants in Mexico), cert. denied, 382 U.S. 963 (1965).
Extradition, another example of international cooperation, ordinarily does not subject the requesting sovereign‘s legal regime to constitutional scrutiny in American courts. See Glucksman v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 705, 55 L.Ed. 830 (1911); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir.1971). Mere delivery of Gecas‘s file to a foreign government should produce no different result. Israel, Germany, and Lithuania are independent nations. They will decide for themselves whether or not to prosecute crimes falling within their jurisdictions. We will not assume that the Executive Branch is colluding with foreign powers to circumvent the United States Constitution whenever it shares information on the conduct of foreign nationals-particularly where the conduct in question is not a crime under American law. In short, Gecas has failed to show that the United States is effectively prosecuting him in a foreign country.
3.
We do not base our decision on the negative repercussions of the rule urged by Gecas, but we recognize that those repercussions would be substantial. Extension of the Self-Incrimination Clause to reach foreign convictions would bind the conduct of American officials to the legislative acts of foreign nations. Assume, for example, that the sale and distribution of cocaine is illegal in the nation of Ames. A citizen of Ames visits the United States on a temporary visa. She is arrested in Miami International Airport after police find five kilograms of cocaine in her luggage. The prosecution offers her immunity in exchange for testimony about three leaders of a drug ring operating in Southern Florida. Under the rule proposed by Gecas, she can still refuse to testify because Ames may prosecute her for the same conduct. We agree with the Fourth Circuit that “our own national sovereignty would be compromised if our system of criminal justice were made to depend on the actions of foreign government[s] beyond our control.” (Under Seal), 794 F.2d at 926.
Conversely, the rule urged by Gecas would constrain the law enforcement activities of foreign countries where the privilege against self-incrimination does not exist. Fugitives who flee to the United States would become entitled to a procedural right they lack in their own countries. “Comity among nations dictates that the United States not intrude into the law enforcement activities of other countries conducted abroad.” Id. Stated differently, we leave to the Executive Branch, with the advice and consent of the Senate, the decision to negotiate the application of the privilege to both domestic and foreign court proceedings.15
IV.
We now turn to the broadest contention made by Gecas: he contends that, precedent notwithstanding, the Framers intended the privilege against self-incrimination to extend to the possibility of incrimination under the law of a foreign jurisdiction. According to Gecas, the history of the privilege against self-incrimination indicates that its “main purpose” is the protection of individual privacy and dignity. See Brief for Appellant at 5. He claims that the privilege creates in the individual a freedom to remain silent whenever his testimony may be adverse to his penal interests, regardless of where the infliction of criminal penalties will occur. Gecas contends that the Framers intended the Self-Incrimination Clause to bestow upon him this personal, individual right. We must therefore examine the history of the privilege against self-incrimination to determine whether the policies behind the Clause justify its application to Gecas.
Unfortunately, the cases do not provide us with a detailed exposition of the history of the privilege against self-incrimination. The Fifth Amendment‘s Self-Incrimination Clause itself has virtually no legislative history. Beyond the few ambiguous English cases cited by the Murphy Court, no court has examined the history of the privilege with regard to self-incrimination under foreign law. Therefore, we must pull together, largely from academic scholarship, an understanding of the history of the privilege as it developed in continental Europe, in England, and in America. This undertaking will fill a few more pages of the federal reporter than we might otherwise wish, but we consider a full understanding of the privilege essential to the resolution of the important issue presented in this case. The following is a summary of our discussion:
We begin in subpart A.1 with medieval ecclesiastical procedure. Ecclesiastical courts in continental Europe barred compelled, testimonial self-incrimination until an accuser stepped forward. Once accused, however, defendants were forced to prove their innocence through the performance of a ritualistic test. Because all convictions were based on the defendant‘s behavior in performing the test, all convictions were based on self-incrimination. Whether an individual would be forced to undergo a test depended on the legal sufficiency of the accusation.
We turn in subpart A.2 to medieval English courts, both ecclesiastical and secular. At Rome‘s direction, medieval English ecclesiastical courts relaxed the requirements for a legally sufficient accusation. In particular, judges themselves were allowed to accuse and force an incriminatory test. English common-law courts, by contrast, did not follow ecclesiastical law on this point. They required a personal accusation or the accusation of an inquest, the precursor to our modern grand jury.
In subpart B.1, we discuss the effect of the advent of the jury trial. The jury trial gradually replaced the ancient tests as the method of proof used in the common-law courts. Access to a neutral trier of fact meant that not every conviction would be a conviction based on self-incrimination. In subpart B.2, we explain why the jury trial did not cause the common-law courts to recognize a privilege against self-incrimination: when the jury began to hear evidence, defendants were disqualified from testifying under oath. They could not be called as witnesses for the prosecution, so there was no need for a privilege.
In subpart C, we address how the common-law courts came to recognize an implicit privilege against self-incrimination. By the mid-1500s, common-law judges themselves were taking testimony at preliminary hearings. Relying on their interpretation of medieval ecclesiastical law, they refused to interrogate suspects under oath at the preliminary hearing, although they did compel sworn testimony from nonparty witnesses.
In subpart D, we consider how that implied privilege eventually became explicit. During the 1600s, the British monarchy enlarged the jurisdiction of its prerogative tribunals,16 the Star Chamber and the Commission for Causes Ecclesiastical (the “Commission“),17 in an effort to suppress religious and political heterodoxy. Subpart D.1 shows how the common-law courts fought against the Crown‘s expansion of its prerogative jurisdiction. Subpart D.2 describes the procedures of the Star Chamber and the Commission. Subpart D.3 discusses how religious dissenters, particularly the Puritans, fought against the prosecutorial techniques of these two tribunals.
Subpart E deals with the actual recognition of the privilege against self-incrimination, first in ecclesiastical courts and then at common law. Together, the common-law courts and the religious dissenters of the seventeenth century achieved the abolition of the royal prerogative courts and caused the enactment of a privilege against self-incrimination in ecclesiastical courts. When the common-law courts finally gave substance to their own implied privilege against self-incrimination in the late-1600s, they viewed it as a limitation on the power of centralized government to punish crimes of conscience by diluting the procedural protections of the common law.
In subpart F we turn to the American colonies. Subpart F.1 discusses colonial criminal procedure and the recognition of the privilege in America. The colonists gradually came to view the repressive measures of the British authorities as a repeat of the actions of the prerogative courts of the seventeenth century-the institutions which had driven many of their ancestors out of England. We explain in subpart F.2 the various attempts to codify the privilege after the American Revolution. Eight of the thirteen newly-independent states enacted an explicit privilege against self-incrimination. Almost all early discussion of the privilege limited its application to criminal prosecutions. We conclude that the Framers adopted a privilege against self-incrimination, applicable in “any criminal case,” as a limitation on the power of centralized government to prosecute crimes of conscience by weakening the procedural protections of the common law.
A.
1.
Early in the history of the Roman Catholic Church, confession of sin became an obligation of faith. The Church decided during the third century A.D. that parishioners would be more likely to confess privately to a priest than publicly before the congregation. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 Mich. L.Rev. 2625, 2639-40 (1996). Parishioners naturally would have expected that a public confession of crime would result in punishment by ecclesiastical or secular authorities, and confidentiality helped to overcome their reluctance to expurgate their sins. Christians were free from the moral duty spontaneously to confess their sins in public. In the eyes of the Church, they had a right to remain silent about their own transgressions.
This privilege against public confessions, however, ceased to apply once an accuser stepped forward and informed the ecclesiastical authority that an individual had committed an offense. A formal accusation placed the burden of proof on the accused to exonerate himself. The accused discharged the burden of proof through the successful performance of a ritualistic test, the nature of which was decided by the ecclesiastical court based on the accusation. The primary methods of proof were ordeal,18 battle, and precise
Each of the methods of proof relied entirely on the behavior of the defendant, under the threat of a penalty, to determine guilt. In this sense, every conviction under the ancient methods of proof was a conviction based on self-incrimination.19 For example, if a party came forward with an accusation that adhered to the proper formulas, the court might force the defendant to pay a fine or, alternatively, to swear, along with twelve family members, to the falsity of the charge. If the defendant and these co-swearers precisely recited the appropriate set of oaths, the defendant would be acquitted. If not, the defendant would be convicted. All convictions under the ancient methods of proof resulted from the defendant‘s failure to perform the required test.
In early medieval ecclesiastical procedure, then, the accusation ended a defendant‘s right to remain silent. If properly accused, a defendant could be summoned and forced to prove his innocence: ”Licet nemo tenetur seipsum prodere, tamen proditus per famam tenetur seipsum ostendere utrum possit suam innocentiam ostendere et seipsum purgare” (“Although no one is bound to produce himself, he who is singled out by rumor is bound to show whether he can prove his innocence and to purge himself.“). See M.R.T. MacNair, The Early Development of the Privilege Against Self-Incrimination, 10 Oxford J. Legal Stud., Spring 1990, at 66, 70. This “nemo tenetur principle” marked the boundary between protected silence and compelled self-incrimination. There was no privilege against self-incrimination after an accusation was made.
Moreover, beginning in the ninth century, the Church relaxed the requirements for a legally sufficient accusation, which increased the use of self-incriminatory tests. Ecclesiastical courts began to prosecute individuals not just on the basis of a private accusation, but also on the basis of public rumors of wrongdoing. See Adhémar Esmein, A History of Continental Criminal Procedure with Special Reference to France 79 (1913). Church leaders sought this expansion of ecclesiastical jurisdiction because private accusers often refused to come forward and face the severe penalties for false accusation.
The Church borrowed one method of discovering rumors of wrongdoing from the roy-
Defendants incriminated by popular report of an inquest could still obtain an acquittal through the successful performance of an ordeal or an oath, but, as discussed above, these methods of proof effectively compelled defendants to be witnesses against themselves by placing on them the burden of proving their innocence. On the other hand, those who refused the opportunity to exonerate themselves were condemned as if they had confessed. Thus, the implementation of the ecclesiastical inquest increased the use of compelled self-incrimination. Until 1198, however, an ecclesiastical court could not proceed against an individual without, at very least, a private accusation or a strong rumor of criminal activity, as indicated, for example, through an inquest.20
In 1198, Pope Innocent III began to issue a series of decretals authorizing a procedure that became infamous under the auspices of the Holy Inquisition, the processus per inquisitionem (the “inquisitional procedure“). See generally Esmein, supra, at 80. The inquisitional procedure was novel in two main respects. First, a priest was permitted to proceed, on the authority of his office, against individuals who had not been accused of any wrongdoing. A priest could initiate secret proceedings against any individual by gathering witnesses and interrogating them separately. If the witnesses examined by the priest incriminated the target of the investigation, the priest could summon the target.
Second, Innocent III authorized the administration of a different kind of oath, the oath de veritate dicenda (the “inquisitional oath“) to witnesses. The inquisitional oath required witnesses, including defendants, to answer truthfully all the questions to be asked by the judge-often before they knew the nature of the questions to be asked.21 For defendants, silence in the face of an accusation was taken as a confession of guilt. Once again, the ecclesiastical courts had expanded the use of compelled self-incrimination.
The first defendants who were tried under the inquisitional procedure objected to the absence of any public accusation of wrongdoing against them. The church hierarchy responded by pointing to numerous biblical examples of God‘s intervention in the affairs of men. Just as God interceded to punish and reform sinners, so too could God‘s Church through its ministers. See Esmein, supra, at 81.
The first defendants also objected to the Church‘s refusal to allow them to exculpate themselves with a purgatory oath, a simple, blanket denial of wrongdoing. The church leaders responded that the inquisitional oath was actually more lenient than the purgatory oath. To use a purgatory oath, the defendant had to obtain supporting oaths from relatives and friends. Under the inquisitional oath, by contrast, the accused‘s promise to tell the truth sufficed without more.
Finally, these defendants argued that the longstanding privilege against public confessions, originally adopted to encourage confidential confessions, barred the administration of the inquisitional oath. The Church leaders rejected this argument too. The privilege against public confessions merely spared the faithful from the requirement of
Thus, the ecclesiastical courts of the early medieval period recognized no privilege against self-incrimination. The only limitation on prosecutorial discretion was the requirement of an accusation, as represented by the nemo tenetur principle. The first real debate about compelled self-incrimination centered on who could accuse—not whether the defendant should be exempt from all sworn interrogation. The inquisitional procedure simply allowed the judge to decide that a common report of criminal wrongdoing was sufficient to overcome the privilege against public confessions.
2.
Before the Norman Conquest in 1066, the English common-law courts heard both secular and religious cases according to the ancient accusatorial system of ordeals, battles, and oaths. Religious and secular jurisdictions were unified. During this period of shared jurisdiction, the common-law courts effectively adopted the nemo tenetur principle: an individual could only be forced to face the ordeal, fight, or swear if properly accused. The nemo tenetur maxim was enshrined in chapter 28 of the
In accordance with continental custom, however, William the Conqueror severed secular from ecclesiastical jurisdiction sometime in the latter 1160s. See 1 Pollack & Maitland, supra, at 97-98. In 1236, a papal emissary announced the Pope‘s promulgation of the inquisitional procedure at the Pan-Anglican Council in London. See John H. Wigmore, The Privilege Against Self-Incrimination; Its History, 15 Harv. L. Rev. 610, 610 (1902). Thereafter, administration of the inquisitional oath became routine in English ecclesiastical courts.
The English secular courts, by contrast, never adopted the inquisitional procedure. They had split off from the ecclesiastical courts some seventy years earlier. The most common form of secular criminal trial in twelfth-century England involved an accusation of wrongdoing by private citizens.22 Before the defendant was required to answer, the accuser would be required to make an offer of proof by obtaining the supporting oaths of so-called “suitors,” who were usually the accuser‘s relatives or allies in the community.
Unlike the ecclesiastical courts, English common-law courts dispensed with this formal, private accusation of crime in only two situations. First, if someone was caught in the act of committing a crime or in flight from a crime, courts would usually impose a punishment without any further inquiry. Second, individuals could be tried without a private accusation if an inquest offered up their names as reputed felons.
From the time of Charlemagne, the Norman kings authorized their itinerant justices of the peace (“JPs“) to summon groups of prominent local inhabitants—or “jurors“—to answer under oath about the affairs of the locale. See generally 2 Pollock & Maitland, supra, at 520-21. During the twelfth century, JPs began to use the inquest of jurors to inquire about reputed criminals. See generally 1 Pollock & Maitland, supra, at 140-141. If the inquest swore that a particular individual was rumored to be a thief, for example, that individual would be arrested and jailed.23 The court held no preliminary inquiry re-
In sum, like defendants in the ecclesiastical courts of the twelfth century, defendants at common law could only be summoned to answer for a crime if properly accused. See Esmein, supra, at 337. Once accused, defendants at common law, like defendants in church proceedings, were required to offer proof of their innocence in the form of an ordeal, battle, or oath. They too had no privilege against self-incrimination. Ecclesiastical and secular proceedings differed primarily in that, from the early thirteenth century, church leaders themselves were permitted to accuse on the authority of their office, while JPs had to wait for a private accusation or an indictment by inquest.
B.
1.
Beginning in the thirteenth century, trial by jury began to replace the ancient methods of proof in English common-law courts. This development removed from the defendant‘s shoulders the burden of proof associated with ordeals, battles, and oaths. By allowing defendants recourse to an ostensibly neutral determination of guilt or innocence, the jury trial ended the automatic self-incrimination inherent in the ancient methods of proof.
Ordeals, battles, and oaths fell into disfavor. In 1215, the Fourth Lateran Council forbade the clergy from participating in trial by ordeal, depriving these rituals of their religious sanction. Trial by battle was rarely available because of several exceptions, such as the exception for aged and infirm litigants, and the widespread use of hired champions undermined the perceived validity of battle. See 2 Pollock & Maitland, supra, at 633. Courts were reluctant to allow trial by oath in metropolitan jurisdictions, where professional swearers could earn easy acquittals for their clients. Defendants in rural common-law courts often found it difficult to gather sufficient relatives and neighbors willing to swear the required supporting oaths. Moreover, courts often refused to allow repeat offenders to take the purgatory oath. With these older forms of proof in decay, the common-law courts of the thirteenth century began to turn to a different method of proof—the ubiquitous inquest.
Trial by jury arose from the combination of two procedural reforms: the fact-finding inquest and the exception. As noted above, the Norman kings used inquests in the eleventh century to indict suspected criminals. Beginning in 1164, King Henry II also authorized private litigants to summon an inquest to resolve certain types of civil disputes. See 1 Pollock & Maitland, supra, at 145-46. Around the same time, the royal courts were beginning to recognize the defendant‘s ability to “take exception” to the plaintiff‘s allegations. See 2 Pollock & Maitland, supra, at 587-88. Instead of denying the allegations outright, the defendant could, for example, attack the plaintiff‘s pleadings on the ground that the complaint was motivated by “hatred and spite.” During the mid-thirteenth century, defendants began to obtain writs of inquest to determine the validity of the exception. By taking exception and summoning an inquest, a civil litigant in the king‘s courts could choose to be “put upon his country“—to rely on a verdict of his neighborhood—instead of vindicating himself through ordeal, battle, or oath. The combination of inquest and fact-based exception created the jury trial.
Jury trials spread to criminal cases in the latter half of the 1200s. See id. at 618. At first, the inquest that was called to inform the king of suspected lawbreakers also decided the guilt of the accused at trial. In 1352, however, King Edward III established that the defendant could exclude from the trial jury any person who was on the inquest that accused him, a reform which effectively separated the grand jury from the petit jury. Although trial by battle was not abolished until 1819, and trial by oath was not abolished until 1833, the jury trial soon came to dominate the landscape of English criminal procedure. See Esmein, supra, at 334.
The jury trial was a necessary step towards the recognition of the privilege against self-incrimination. The arrival of the jury
2.
The advent of the jury trial, however, did not cause the common-law courts to recognize a privilege against self-incrimination. There was no immediate need for a privilege against compelled, testimonial self-incrimination because in early-fourteenth-century England, the jury heard no courtroom testimony at all—much less compelled, self-incriminatory testimony. See id. at 328. Jurors decided a defendant‘s guilt based on their own personal observations, their judgments about the defendant‘s character, and even hearsay and gossip within the community. Conscientious jurors investigated the crime on their own initiative by interviewing witnesses and visiting the crime scene. See id. at 327. Juries still rendered verdicts on the basis of their own private sleuthing well into the eighteenth century. See id. at 329.
Live witness testimony became a regular fixture in jury trials only in the sixteenth century. See 9 William Holdsworth, A History of English Law 178 (3rd ed. 2nd prtg. 1976) (1926). Even then, the question of testimonial self-incrimination did not immediately arise, for two reasons.
First, defendants were barred from testifying under oath at trial. Defendants were initially disqualified because allowing them to give sworn testimony was thought to combine unfairly two methods of proof—trial by oath and trial by jury. See Wigmore, The Privilege Against Self-Incrimination, supra, at 628. The common-law courts allowed defendants only one method of proof—one “bite of the apple.” As the law of evidence evolved, courts began to exclude the defendant‘s sworn testimony based on its assumed unreliability. Defendants were considered presumptively biased. Although the absence of defense counsel forced defendants to argue on their own behalf at trial, common-law courts ruled in the latter half of the sixteenth century that the jury was not to assign any evidentiary value to the defendant‘s factual assertions. See 9 Holdsworth, supra, at 195. In fact, criminal defendants could not testify under oath at all until 1872, and they could not testify under oath in all criminal cases until 1898. See Frederic W. Maitland & Francis C. Montague, A Sketch of English Legal History 176 & n. 3 (1915). Accordingly, until 1872, the state could not have compelled the defendant to testify under oath at trial.
Second, until the mid-sixteenth century, all nonparty witness testimony in common-law criminal trials was voluntary. The Chancery Court invented the subpoena in the fourteenth century to compel the attendance of nonparty witnesses in equity cases. See 9 Holdsworth, supra, at 184. Common-law courts, however, did not obtain this power until 1562. Before then, nonparty witnesses testified, if at all, only reluctantly, mainly because they assumed potential liability for false imprisonment if the opposing party prevailed at trial. See 9 Holdsworth, supra, at 130-31. Because all nonparty witness testimony was voluntary until the mid-sixteenth century, nonparty witnesses could not be compelled to incriminate themselves.
Therefore, introduction of the jury trial did not immediately give rise to a need for the privilege against self-incrimination. Jury trial, however, did set the stage for an implicit recognition of a privilege against self-incrimination in the sixteenth century. As the jury began to hear evidence, courts began to consider what types of evidence should be excluded. New investigative techniques, including the preliminary examination of the accused and compulsory process for witnesses, produced incriminatory testimony. The common-law courts reacted to these procedural innovations by restricting the permissible scope of the defendant‘s interrogation.
The procedural innovations began in 1383. In that year, Parliament passed the first statutes authorizing JPs to examine suspects and witnesses before trial in minor criminal matters. These preliminary examination statutes covered a wide array of subject matters, from heresy to poaching, and established a variety of procedures to be applied, depending on the nature of the case. Most of the early statutes concerned misdemeanors and simply authorized JPs to take testimony and decide guilt themselves, dispensing with the trial altogether. The majority of these statutes did not mention whether or not the examination was to be under oath. Other statutes were more specific and actually required the JPs to take sworn testimony from the witnesses and the suspect.
For example, a 1414 statute authorized the JPs to interrogate laborers under oath to discover if they had committed any crimes. See John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France 68 (1974). In the sixteenth century, Parliament authorized common-law courts to interrogate under oath accused bankrupts, abusers of warrants, and other specific types of criminals. See 8 John H. Wigmore, Evidence in Trials at Common Law § 2250, at 285-86 (McNaughton rev. ed. 1961). At first, most common-law courts accepted the practice of examining both suspects and witnesses under oath. See John H. Wigmore, Nemo Tenetur seipsum Prodere, 5 Harv. L. Rev. 71, 76-78 (1891).
In 1554, however, a discourse began among judges about the propriety of sworn interrogation. In that year, Parliament enacted the Bail Statute. See An Act appointing an Order to Justices of Peace for the Bailement of Prisoners, 1 & 2 Phil. & M., ch. 13, § 1 (1554) (Eng.) [hereinafter Bail Statute]. In the following year Parliament enacted the Committal Statute. See An Acte to take the Examination of Prysoners suspected of Manslaughter or Felonye, 2 & 3 Phil. & M., ch. 10, § 1 (1555) (Eng.) [hereinafter Committal Statute]. These statutes systematically applied the apparatus of the preliminary examination to felonies. The purpose of the Bail Statute and the Committal Statute was to augment the system of private accusations in cases of serious crime where no accuser stepped forward. See Langbein, supra, at 39.
The system established by the Bail Statute and the Committal Statute functioned as follows: if the suspects or witnesses were not already before the court, the court could compel their attendance by issuing a warrant to the sheriff to apprehend them and bring them into court. See Michael Dalton, The Countrey Justice 400-01 (Legal Classics ed.1996) (1655). Once the parties were present, the court examined them and recorded only the information that could be used to prove the guilt of the accused. See Committal Statute, supra, at § 1; see also Bail Statute, supra, at § 1 (providing similar language). JPs had no authority to discharge accused felons. Until the nineteenth century, in fact, they were required to either jail or bail the accused—the preliminary hearing was not a probable cause hearing. See J.M. Beattie, Crime and the Courts in England 1660-1880, at 271 (1986).
The language of the statutes did not tell JPs whether or not to interrogate suspects and witnesses under oath. In practice, JPs consistently threatened, cajoled, and badgered suspected felons into confessing at the preliminary hearing. JPs recorded any incriminating statements and presented them to the jury at trial. Reading the record of the examination was the first step in most criminal trials during the sixteenth and seventeenth centuries. See 8 Wigmore Evidence, supra, § 2250, at 286. The suspect‘s statements during the examination were apparently treated as admissions. Magistrates were not required to warn suspected felons of the potentially dire consequences of their pretrial statements, however, until 1848. See Sir John Jervis’ Act (Administration of Criminal Justice), 11 & 12 Vict., ch. 42, § 18 (1848) (Eng.).
Nevertheless, JPs disagreed for several decades about whether suspected felons should be administered an oath before the interrogation. For the first two decades after the enactment of the statutes, some courts apparently took sworn testimony while others did not. In the 1580s, however, a consensus began to emerge that common-
Under the ancient accusatorial system, a suspected felon could only be brought to trial on the basis of a private accusation or an indictment by an inquest of jurors. Chapter 28 of the
The offender himself shall not be examined upon oath, for by the Common Law, Nullus tenetur seipsum prodere: Neither was a mans fault to be wrung out of himself (no not by examination only) but to be proved by others, untill the Stat. of 2 & 3. Ph. & M. cap. 10. gave authority to the Justices of peace to examine the Felon himself. Dalton, supra, at 369.
Thus, the common-law courts rejected the path taken by the ecclesiastical courts in establishing the inquisitional procedure.
Against the background of the jury trial and testimonial disqualification, this application of the nemo tenetur principle by the common-law courts effectively conferred on defendants an implied privilege against self-incrimination. As originally conceived, the nemo tenetur principle allowed a court to force properly accused defendants to swear to their innocence at trial. The ecclesiastical courts essentially had followed this model: once a private accuser, an inquest of clerics, or the bishop summoned a defendant, the trial court formally interrogated the defen-24dant and other witnesses under oath and based its verdict on their testimony.
Common-law courts, by contrast, gave defendants the option of exoneration through jury trial rather than through oath or battle. Moreover, the disqualification of defendants from testifying under oath at trial prevented the state from calling them as witnesses. Under the common-law rule, then, the nemo tenetur principle barred the court from interrogating defendants under oath at the pretrial hearing, and proof by jury plus witness-disqualification allowed defendants to avoid giving incriminatory testimony at trial. In combination, these policies prevented the state from compelling defendants to testify against themselves.
The implied privilege against self-incrimination for defendants contrasted with the treatment of nonparty witnesses. As noted above, JPs had the power to compel the attendance of witnesses at the examination by issuing a warrant to the sheriff to bring them before the court. See id. at 401. The Bail Statute and the Committal Statute further authorized magistrates to bind over prosecution witnesses who were before them to give testimony at trial against the defendant. See Committal Statute, supra, at § 2; see also Bail Statute, supra, at § 1 (providing similar language). In other words, after recording the testimony of prosecution witnesses, the examining magistrate could require those witnesses to post a bond to secure their attendance at trial.24 If a witness refused to post a bond, then the magistrate could incarcerate the witness to ensure attendance. See Dalton, supra, at 397.
If a witness before the court agreed to be bound over but failed to appear, JPs apparently had several options. First, they could order the forfeiture of the witness‘s bond. Second, they could jail the witness for contempt. See id. at 401. Third, they could substitute the transcript of the witness’ prior sworn testimony for the expected trial testimony, provided that the JP who presided over the preliminary examination was pres-
Despite the potential for compelled self-incrimination, the common-law courts did not recognize a privilege for nonparty witnesses until the second half of the seventeenth century. See 9 Holdsworth, supra, at 199, 229. For example, in the 1580 trial of Thomas Tresham for harboring a heretic, the Lord Chief Justice opined that nonparty witnesses could be compelled to testify under oath at trial, regardless of the nature of their testimony, because they were not themselves in criminal jeopardy. See Levy, supra, at 105. While JP manuals of the time cited the nemo tenetur maxim for the proposition that judges should not question suspects under oath at the preliminary examination, those same manuals instructed JPs to interrogate witnesses under oath. See, e.g., Dalton, supra, at 369.
Therefore, with regard to defendants, an implied privilege against self-incrimination originated in the application of the nemo tenetur principle to preliminary examinations under the Committal and Bail Statutes. While the common-law courts generally applied the nemo tenetur maxim to interrogation of the defendant at the preliminary investigation, they simultaneously required sworn testimony from nonparty witnesses, apparently without regard to the potential for self-incrimination. This contrasting treatment indicates the presence of a limited privilege against self-incrimination for defendants. Nevertheless, the common-law courts did not recognize an explicit privilege against self-incrimination, for defendants or nonparty witnesses, until the late seventeenth century.
D.
Discussion of an explicit privilege against self-incrimination began in the early seventeenth century and arose in two contexts. First, the English common-law courts began to attack the jurisdiction of the prerogative tribunals established by the monarchy for the enforcement of religious and political orthodoxy. The common-law courts did not challenge these rival courts in defense of an individual right to remain silent in the face of self-incriminating questions. Rather, the common-law courts sought to block the Crown from undermining common-law jurisdiction by creating special courts that could operate free from the constraints of common-law procedure.
In 1695, Parliament authorized defendants charged with treason to compel the attendance of defense witnesses. See An Act for regulateing of Tryals in Cases of Treason and Misprision of Treason, 7 & 8 Will. 3, ch. 3, § 7 (1695) (Eng.). These defense witnesses could also give sworn testimony. See id. at § 1; see generally 4 William Blackstone, Commentaries on the Laws of England 359-60 (William D. Lewis ed., 1902) (1765) (explaining the development of the rule allowing defendants to call sworn witnesses). In 1702, Parliament expanded these rights to include all defendants accused of a felony. See An Act for punishing of Accessories to Feloneys and Receivers of stolen Goods to prevent the wilful burning and destroying of Ships, 1 Anne, ch. 9, § 3 (1701) (Eng.). Thus, in England, the prosecution could compel the attendance of sworn witnesses from the mid-sixteenth century, but ordinary defendants had to wait until the beginning of the eighteenth century for the same right.
1.
The scope of the Church‘s jurisdiction over the laity did not become settled until the seventeenth century. During the thirteenth century, the Church assumed broad jurisdiction over several types of disputes, including the correction of sinners. Ecclesiastical jurisdiction included prosecution of fornication, adultery, incest, defamation, usury, simony, perjury, heresy, and sorcery. See id. at 129-30. With ecclesiastical jurisdiction sometimes came the severe inquisitional procedure. See generally, Levy, supra, at 47-48.
Protests against the severity of the inquisitional procedure may have led Parliament to pass the Prohibitio Formata de Statuto Articuli Cleri in the early 1300s. See Levy, supra, at 48-49. This statute purported to restrict the use of the inquisitional oath and thereby limit the jurisdiction of ecclesiastical tribunals. The statute provided that JPs should not allow “that laypersons in their bailiwick be called somewhere to give testimony on their oath, except in causes matrimonial and testamentary.” See Wigmore, The Privilege Against Self-Incrimination, supra, at 611-612 (emphasis added).
The statute, however, did not specify how JPs were to prevent such interrogations, and, in practice, ecclesiastical courts continued to prosecute sin among the laity, particularly after 1382. See generally Levy, supra, at 49. In fact, by statute, ecclesiastical courts formally received jurisdiction over the crime of heresy in 1401. See Wigmore, The Privilege Against Self-Incrimination, supra, at 618. They frequently employed the inquisitional procedure against suspected heretics during the fifteenth and early sixteenth centuries. See generally Levy, supra, at 60.
During the mid-sixteenth century, the monarchy and Parliament continually revised the Church‘s jurisdiction over heresy. Finally, in 1558, Parliament under Elizabeth I effectively repealed the 1401 statute and once again confined the jurisdiction of ordinary ecclesiastical courts to matrimonial and testamentary suits. See Wigmore, The Privilege Against Self-Incrimination, supra, at 619. The sixteenth-century common-law courts then made a sincere effort to restrict the ordinary ecclesiastical courts to this limited purview.
Beginning around 1590, common-law courts began to issue a steady stream of writs of prohibition against ecclesiastical proceedings thought to infringe common-law jurisdiction. See Levy, supra, at 221. A writ of prohibition temporarily halted all pending proceedings until a common-law court could determine whether common-law jurisdiction was involved. See Id. at 220. The reviewing court might then permanently enjoin the ecclesiastical judge from proceeding or, alternatively, issue a “writ of consultation” which canceled the writ of prohibition and allowed the ecclesiastical court to continue. See id.
In seeking a writ of prohibition against pending church proceedings, petitioners naturally pointed to the harm that they would suffer if the common-law court refused to issue the writ. Some petitioners argued that the use of the inquisitional procedure outside matrimonial or testamentary cases undermined the nemo tenetur principle as interpreted by the common-law courts. At common law, petitioners argued, a judge could not force an individual to swear unless independently accused, but the inquisitional procedure allowed the bishop himself to accuse and force an oath. According to these petitioners, therefore, allowing a bishop to prosecute matters outside his jurisdiction would prejudice their common-law rights. In the early seventeenth century, the royal courts began to issue large numbers of writs on the
The issuance of writs on jurisdictional grounds, however, did not represent the recognition of an explicit privilege against self-incrimination by the common-law courts. For instance, during the early seventeenth century, the common-law courts refused to enjoin the use of the inquisitional procedure against clergymen or against laypersons who were involved in matrimonial or testamentary disputes. The common-law courts of the early seventeenth century sought to limit the potential abuses of compelled, inquisitional self-incrimination, not to eliminate it altogether. See MacNair, supra, at 73. They perceived the expanding jurisdiction of the prerogative courts of the king as a threat to their continued survival, particularly in light of the efficiency with which the inquisitional procedure produced convictions.
2.
a.
Since early in the history of England, the king dispensed prerogative justice through his appointed officials. See William Hudson, A Treatise of the Court of Star Chamber 9-10 (Legal Classics ed.1986) (1792). Beginning around 1290, a group of these officials began regularly to advise the king on the resolution of legal disputes which were of interest to the Crown. The Privy Council, as the group came to be called, also performed several other executive functions.26 By the mid-fourteenth century, when the Privy Council acted as a court, it sat in a room at Westminster ornamented with the king‘s star-shaped seal. The Council-as-tribunal came to be known as the Court of Star Chamber.
The Star Chamber was a prerogative court of the monarchy. The Star Chamber could punish all offenses except treason and enumerated felonies. See Levy, supra, at 100. In general, it heard cases involving misuse of judicial power, official corruption, rioting, disobedience to royal writs, perjury, contempt, forgery, counterfeiting, and fraud, but the court‘s jurisdiction was not limited to these crimes. See id. The Star Chamber could “not only ... take causes from other courts and punish them [itself], but also ... punish offences secondarily, when other courts have [already] punished them.” Hudson, supra, at 115-16. The Star Chamber could impose sentences of torture, imprisonment, fines, or mutilation, but it could not order the execution or dismemberment of the defendant, as these penalties were reserved to the common-law courts. See Levy, supra, at 100.
The Star Chamber had the power to change its own procedures, a power which it exercised with some frequency. See 5 William Holdsworth, A History of English Law 187 (3rd ed. 2nd prtg. 1973) (1924). In general, however, defendants could only be summoned through a formal accusation by either a private individual or the Crown‘s counsel. See Levy, supra, at 182-83. Once accused, a defendant was compelled to appear and to respond to the accusation. After the accuser reviewed the defendant‘s answer, the accuser submitted interrogatories which the court asked the defendant to answer.27 The court recorded the defendant‘s testimony, and af-
At the court‘s discretion, the parties could compel the attendance of witnesses, provided that the summoning party paid the travel expenses of each witness. See id. at 207. The court or its commissioners examined the witnesses under oath, once again using interrogatories submitted by the parties. See id. at 199. Based on the pleadings and on the depositions of the defendant and the witnesses, the Star Chamber then rendered its decision. See id. at 223.
The Star Chamber recognized no privilege against self-incrimination for defendants. See 5 Holdsworth, supra, at 187. When defendants refused to answer material interrogatories, the court fined them twenty shillings and repeated their questions. See Hudson, supra, at 171. If the defendants again refused to answer, the court would double the fine and imprison them until they relented. See id. Some obstinate defendants remained in prison for life because of their refusal to testify. See id.
Nonparty witnesses in the Star Chamber, by contrast, had a limited privilege against self-incrimination. As a matter of policy, the parties were barred from defaming witnesses through “scandalous and impertinent” questions about unrelated crimes. Id. at 209. The parties might have used such questions to impeach the credibility of witnesses. Nevertheless, the oath administered to witnesses before the Star Chamber required only that they “make true answer to such interrogatories as shall be ministered unto you as a witness concerning this cause, without partiality or affection to either of the parties.” Id. (emphasis added). If the question did not concern the present crime, the witness could refuse to answer. See id.
By implication, however, nonparty witnesses had to answer incriminating questions that did concern the present crime. This was particularly true if prosecution of the alleged crime was very important to the Crown. In a “Case of State,” the Star Chamber allowed the prosecution to compel sworn testimony that might place a witness in criminal jeopardy. See id. Thus, the defendant had no privilege against self-incrimination before the Star Chamber, but witnesses had a limited privilege, depending on the relevance of the questions and the importance of the case.
Although folklore concerning the Star Chamber continues to inspire antipathy,28 the Star Chamber itself did not directly orchestrate the persecution of religious nonconformists. Instead, a body that came to be known as “the Commission” prosecuted religious heterodoxy during the late-1500s and early 1600s using the inquisitional procedure. The Star Chamber became associated with the Commission, and therefore incited popular resentment, largely because the Star Chamber upheld on appeal the judgments and practices of the Commission.
b.
In 1534, Henry VIII split the Church of England from the Roman Catholic Church. The Act of Supremacy unified matters of church and state under the direction of the monarchy and gave the king absolute power to repress heresy. Those who advocated the disestablishment of the Church of England could be considered heretics or traitors, depending on how the monarchy wished to proceed against them. Over time, the prerogative courts of the king, particularly the Star Chamber and Commission, began to adopt ecclesiastical procedures in pursuit of political and religious dissidents.
In 1535, Henry VIII granted to his Chancellor of the Exchequer, Thomas Cromwell, the authority to investigate all matters of ecclesiastical concern and to deal with them as Cromwell saw fit. See Roland G. Usher, The Rise and Fall of the High Commission 20 (2nd ed.1968) (1913). This 1535 order was the first in a series of “Letters Patents,” or royal decrees, which authorized royal officers
Perhaps because of the broad scope of the letters patents, the early Commission adopted few formal procedures. See Usher, supra, at 44. From 1535 to around 1570, the Commission basically performed whatever task the Privy Council assigned to it, such as the imprisonment without trial of some particular heretic, the censorship of a pernicious book, or even the consecration of the remains of a martyr whose grave had been defiled in a religious riot. See id. at 49-54. During this early period, the commissioners did not convene in one location; they met in private homes, taverns, gardens, or whatever locale served their purpose. To summon an accused, the Commission simply sent a letter stating its demand. See id. at 73-74.
What “trials” the commissioners conducted usually began with unsworn interrogation of the suspect by the commissioners. These interrogations often devolved into rambling debates among the accused and the judges, with all parties trading insults. The commissioners borrowed what minimal procedures they required from the canon law, including the inquisitional oath, but until around 1575, the commissioners rarely forced detainees to take the oath. See id. at 44. Of course, a conscientious refusal to swear might easily have been taken as an admission of guilt.
The procedures of the Commission took shape with greater clarity during the late sixteenth century, when the Privy Council began to delegate a large number of ordinary ecclesiastical disputes to the Commission. See id. at 70. Beginning around 1580, the Commission began to apply the procedures of continental ecclesiastical courts. See id. at 76-77. For criminal cases, the Commission used the inquisitional procedure and the inquisitional oath whenever necessary. See id. at 107. For example, in heresy trials, the commissioners themselves often accused suspects and administered the oath to them without informing them of the nature of the accusation or the nature of the questions to be asked. Any resulting testimony was used to the detriment of the accused.
3.
At first, few defendants protested against the inquisitional procedures of the Star Chamber and the Commission. During the sixteenth century, the Commission focused its attention on uncovering Roman Catholic conspiracies against the monarchy and the Church of England. For some reason, the vast majority of Catholic defendants simply submitted to sworn interrogation without protest. In 1580, for example, the Commission rounded up 170 suspected Catholics in York and interrogated them under oath. Only one suspect refused to take the oath, and he was imprisoned for his refusal. See Levy, supra, at 99.
Unlike the Catholic dissenters, the Puritan nonconformists of the early seventeenth century vehemently protested against the use of inquisitional tactics by the Crown. For example, a Puritan pamphlet of 1605 condemned the oath as “most damnable and tyrannous, against the very Law of Nature, devised by Antichrist, through the inspiration of the devil.” Id. at 215 (quoting 2 Benjamin Brook, The Lives of the Puritans 232 (1813) (internal quotation marks omitted)). Puritan defendants made similar arguments in court. For instance, when the Commission attempted to interrogate Nicholas Fuller, a Puritan attorney, concerning his alleged slanders against the Church of England, Fuller attacked the oath as “against the old laws of England, the law of nature, justice, and equity.” Id. at 236 (quoting The Argument of Master Nicholas Fuller 2-3 (1607) (internal quotation marks omitted)).
The precedent cited by Fuller and others like him provided scant support for a broad privilege against self-incrimination. For instance, Puritan defendants often quoted
The Puritans argued for a general privilege against self-incrimination not because they were entitled to one under precedent, but because they sought to interpose as many procedural objections as possible to their prosecution. In addition to their arguments concerning compelled self-incrimination, Puritan defendants sought writs of prohibition in the common-law courts on two jurisdictional grounds.
First, Puritan defendants argued that the Commission lacked jurisdiction over heresy because heresy was not “matrimonial or testamentary.” As discussed above, common-law courts issued many writs on this basis alone.
Second, Puritan defendants argued that the Commission, as an ecclesiastical tribunal, could not impose secular punishments in non-matrimonial, non-testamentary suits. See id. at 216. Chief Justice Coke particularly favored this argument, which was based on a strained reading of chapter 29 of the
This language, however, could not have made the common-law jury trial a prerequisite for fines or imprisonment, as suggested by Coke, because in 1215 the jury trial was only one of several methods of proof, any of which could result in fines or imprisonment. Moreover, as Attorney General Hobart replied to Coke, whatever the meaning of chapter 29, the Letters Patent of 1605 (which Coke himself had helped to draft) arguably authorized the Commission to impose whatever punishments it chose. See id. at 246-47. Nevertheless, around 1608, with the support of Coke, the common-law courts began to issue scores of writs against the operation of the Commission on the ground that the Commission had overreached its authority. See generally Usher, supra, at 199-201.
Therefore, Puritan defendants did not specifically oppose the inquisitional oath so much as they generally opposed the Commission itself as an overextension of government power. The Puritans argued for the recognition of a privilege against self-incrimination to thwart the prosecution of their religious beliefs. See William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 411-12 (1995). The Puritans left England for Plymouth Colony in 1620 partly because of the repressive techniques of the Commission and the Star Chamber.
E.
1.
While the Puritans were leaving England for the colonies, discussion of the Commission and the Star Chamber became part of a national debate on the role of the British monarchy. By 1641, Puritans in Parliament were willing to take a stand against the use of inquisitional procedures in ecclesiastical courts. On the eve of the Revolution of 1642, Parliament passed a statutory privilege against self-incrimination for ecclesiastical proceedings.
In 1637, John Lilburne, a tailor‘s apprentice, was arrested and charged with importing seditious books. The Star Chamber tried Lilburne and instructed him to testify under oath. Lilburne refused, citing the nemo tenetur maxim, even though he had been accused through the affidavits of two of his confederates. After several months of attempted persuasion, the Star Chamber con-
The pamphlets were widely read by sympathetic members of Parliament. As a result, in 1640, when Charles I called Parliament to raise funds after an eleven-year hiatus, Parliament insisted that the king redress their grievances before they would make any appropriations. Parliament passed two bills, one of which abolished the Star Chamber and the other of which abolished the Commission and the inquisitional oath in ecclesiastical courts. On July 5, 1641, the king assented to both bills. See Levy, supra, at 281. By statute, defendants in church proceedings finally became entitled to a privilege against self-incrimination. The statute did not, however, apply to common-law proceedings, where the privilege remained tacit.
Unlike the implied common-law privilege, the statutory privilege of 1641 was the product of an open campaign against the use of the inquisitional procedure in the ecclesiastical courts. The Puritans, working alongside the common-law courts, made the privilege against self-incrimination a defining feature of the common-law criminal trial. They used the privilege against self-incrimination as a limitation on the authority of the Crown to prosecute crimes of conscience.
2.
Ironically, the 1641 enactment of the statutory privilege for church proceedings did not cause the common-law courts to recognize an explicit common-law privilege against self-incrimination in their own courts. Apart from a few high-profile trials during which the judges went out of their way to demonstrate their fairness to the defendant, common-law courts did not create a distinct common-law privilege, motivated by public policy, until the end of the seventeenth century. See MacNair, supra, at 82. Instead, the common-law courts continued to adhere to procedures that prevented the use of compelled, testimonial self-incrimination at trial—in particular, the nemo tenetur principle, the trial by jury, and the witness-disqualification of defendants.
Even in the few cases where a privilege would have been useful to defendants, the common-law courts of the mid-seventeenth century did not allow it. For example, they used inquisitorial procedures to adjudicate cases of criminal contempt. They also required that parties cited for abuse of process answer sworn interrogatories about the alleged crime. See id. at 81-82. This practice continued until around 1700. See id. at 83.
Furthermore, common-law courts were lenient in their enforcement of the ecclesiastical privilege. See Id. at 81. The 1641 act imposed a penalty of 100 pounds and authorized a treble damages action against any official who required a suspected criminal to give sworn testimony. A 1661 act of Parliament repealed these punitive measures. Thereafter, defendants in ecclesiastical proceedings could only invoke the privilege against self-incrimination by obtaining a writ of prohibition from a common-law court.
Resulting decisions by the common-law courts permitted ecclesiastical tribunals to interrogate suspects in criminal proceedings, provided that they did not do so under oath, and allowed ecclesiastical courts to use sworn interrogation in civil proceedings. See id. at 80. Some common-law courts prohibited the oath only where the suspect faced secular punishment, thus allowing ecclesiastical courts to inflict spiritual punishment (such as excommunication) on the basis of self-incrimination. See id. at 81. Hence, the statutory privilege for ecclesiastical courts did not cause common-law courts to immediately adopt their own explicit privilege against self-incrimination.
Beginning in the 1690s, however, common-law courts began to describe the pre-existing, implied privilege against self-incrimination as a reflection of natural law. See MacNair, supra, at 84 (quoting Geoffrey Gilbert, The Law of Evidence 99 (Garland ed., 1979) (1754)). Courts also began to interpret the privilege as a limitation on the power of
Of the Court of Star-chamber and the High Commission Court taken together ... the characteristic feature is, that, by taking upon them to execute the will of the king alone, ... they went to supersede the use of parliaments, substituting an absolute monarchy to a limited one. In the case of the High Commission Court, the mischief was aggravated by the use made of this arbitrary power in forcing men‘s consciences on the subject of religion. In the common-law courts, these enormities could not be committed, because ..., convictions having never, in the practice of these courts, been made to take place without the intervention of a jury, and the bulk of the people being understood to be adverse to these innovations, the attempt to get the official judges to carry prosecutions of the description in question into effect presented itself as hopeless.... In those days, the supreme power of the State was “de facto” in the hands of the king alone: ... being employed and directed against property, liberty, conscience, every blessing on which human nature sets a value,—every chance of safety depended upon the enfeeblement of it. 8 Wigmore, Evidence, supra, § 2250, at 292 (McNaughton rev. ed. 1961) (quoting 7 The Works of Jeremy Bentham 456, 462 (Bowring ed. 1843)).
During the early-eighteenth century, the common-law courts gave substance to the implied common-law privilege. They applied the privilege first to defendants, then to witnesses. See id. at 290. For example, when nonparty witnesses were questioned on matters that might tend to incriminate them, the old policy forbidding scandalous and defamatory questions gave way to the new policy forbidding questions that might lead to penal sanctions. By the mid-eighteenth century in England, common-law courts could hold that “[i]t is clearly settled now, that no person is obliged to make a discovery, which will subject himself to a disability.” Harrison v. Southcote, 1 Atk. 530, 533 (1751). This “clearly settled” principle was a rule of evidence limiting the government‘s power to establish inquisitorial tribunals.
F.
True to its English antecedents, the privilege against self-incrimination in the American colonies was viewed as a limitation on the power of national government to prosecute religious and political heterodoxy. The colonies adopted the common law of England29 and with it the unsworn preliminary examination, the jury trial, and the testimonial incapacity of defendants—which in combination gave rise to an implied privilege against self-incrimination for defendants. Because American common-law courts followed English procedure for criminal trials, the need for an explicit privilege did not become apparent to the colonists until the eve of the Revolution. In the mid-1700s, repressive moves by the national government in London rekindled old hatreds for prerogative justice. The result was an American re-enactment of the struggle against the Commission and the Star Chamber.
1.
The procedures used by the courts in the trial of criminal cases in early colonial America are not altogether clear. Cases were not generally reported during the seventeenth and eighteenth centuries, and procedures were not authoritatively codified. However, the wide circulation of English JP manuals during this period, such as Dalton‘s The Countrey Justice, seems to indicate that American courts followed contemporaneous English criminal jurisprudence. See Levy, supra, at 371. The existing data corroborate this hypothesis. See Eben Moglen, Taking the Fifth: Reconsidering the Origins of the
In New York and Virginia, where antique court records are most complete, criminal cases in the seventeenth and early eighteenth centuries typically began with a preliminary examination of the accused and the witnesses. See Julius L. Goebel, Jr. & T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664-1776) 339-40 (1944); Arthur P. Scott, Criminal Law in Colonial Virginia 55-56 (1930). Just as in England, colonial courts could use warrants to compel the attendance of suspects and witnesses for examination.30 See Hugh F. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia 99 (1965).
Statements by the accused could be read into evidence at trial (although the court did not inform the accused of this risk). See Goebel & Naughton, supra, at 340. Because the accused was barred from hiring defense counsel in felony prosecutions and could rarely afford defense counsel in most misdemeanor prosecutions, the accused was effectively forced to argue at trial.31 Questioning from the bench (and from the jury box) during trial often led to damaging admissions. See id. at 652-53. However, as in England, the court could not force the accused to testify under oath. See Scott, supra, at 55-56. Thus, if New York and Virginia served as models of colonial justice, common-law defendants in colonial America had an implied privilege against self-incrimination, just as they had in England. Cf. Colonial Justice in Western Massachusetts 146 (Joseph H. Smith ed., 1961) (noting that, in colonial Massachusetts, defendants were not examined under oath even though they never claimed a privilege against self-incrimination).32
This implied privilege, however, became explicit in the colonies later than it did in England. As late as 1640, the inquisitional oath was administered in heresy prosecutions by the civil authorities in Virginia, see R. Carter Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763, 780 (1935), and in Massachusetts as late as 1647, see Levy, supra, at 351. During the seventeenth century, the implied privilege
There appears to have been a consensus during the seventeenth century that sworn interrogation could be used when “strong presumptions” pointed to the guilt of the accused. See id. While some state courts eschewed sworn interrogation, others had no such rule. In Maryland, for example, the common-law courts recognized an explicit privilege against self-incrimination during the seventeenth century. See id. at 356. In colonies such as South Carolina, however, no discussion of the privilege appears at all during this period. See id. at 367. During the seventeenth century, then, colonial courts did not uniformly adopt an explicit privilege against self-incrimination.
In scattered instances during the later half of the seventeenth century, however, the colonists began to recognize the privilege as a common-law right. This recognition invariably coincided with movement by the British administrators to repress political dissidence. For example, in 1677, the legislature of Virginia reaffirmed the ban on sworn interrogation after Governor Berkeley summarily executed a number of alleged participants in Bacon‘s Rebellion on the basis of confessions compelled through torture. The Virginia bill stated, “The law has provided that a witness summoned against another ought to answer upon oath, but noe law can compell a man to sweare against himself in any matter wherein he is lyable to corporal punishment.” Pittman, supra, at 781-82 (quoting 2 Statutes at Large Being a Collection of All Laws of Virginia (1619-1792) 442 (William W. Hening ed., 1809) (internal quotation marks omitted)).
Similarly, in 1689 the colonists revolted and overthrew Edmund Andros, Governor of New England, partly because Andros sought “too frequent[ly] upon more particular displeasure to fetch up persons from very remote counties before the Governor and Council at Boston ... not to receive their tryal but only to be examined there, and so remitted to an Inferior Court to be farther proceeded against.” Id. at 784 (quoting The Proceedings of Andros (pamphlet 1691) (internal quotation marks omitted)). Sophisticated defendants began to argue against the use of inquisitional techniques by the colonial authorities. For instance, in 1689, William Bradford successfully refused to incriminate himself for publishing an unlicensed political work in a prosecution initiated by the Governor of Pennsylvania. See Levy, supra, at 360-61.
The perceived value of the privilege against self-incrimination steadily increased during the eighteenth century as the colonists became aware of a pattern of repressive investigations and prosecutions by the British authorities. For example, the politically motivated trials in New York of Henry Beekman, Nicholas Bayard and John Hutchins, and the inquisitional treatment of Samuel Hemphill, a Presbyterian minister accused by the religious elders of Pennsylvania of heretical sermons, began to convince the colonists of the need for guarantees of uniformity in criminal procedure. See id. at 380, 383. The censure of Hemphill in 1735 prompted Benjamin Franklin to declare that the colonial authorities “have no Pattern for their Proceedings, but that hellish Tribunal the Inquisition, who rake up all the vile Evidences, and extort all the Confessions they can from the wretched Object of their Rage ... and proceed to Judgment.” Id. at 383 (quoting Benjamin Franklin, Some Observations on the Proceedings against The Rev. Mr. Hemphill (pamphlet 1735) (internal quotation marks omitted)). The refusal of defendants to testify in highly visible trials, such as the 1770 prosecution of Alexander McDougall for authoring seditious literature, gave legitimacy to the privilege as a mantra of independence. See id. at 401.
Opponents of the colonial administration also invoked the privilege in opposition to general search warrants, the infamous “writs of assistance.” See id. at 390. Customs officers used writs of assistance to search
As Parliament cracked down on dissent in the colonies, the colonists rallied around the jury trial as a bulwark of liberty. The colonists protested against the provision for nonjury trials in the Stamp Act and the Townsend Acts. See Pittman, supra, at 786-87. The Quebec Act‘s provision for nonjury trials in part of North America and the threatened application of the Treason Act of Henry VIII convinced the colonists of the need to guarantee the integrity of the essential attributes of the common-law jury trial. See Moglen, supra, at 1117. Thus, the colonists reacted to political repression as their ancestors reacted to religious repression in England: they limited the power of centralized government to establish tribunals that did not adhere to common-law criminal procedure.
2.
During the first few years of independence, eight former colonies wrote a privilege against self-incrimination into their new state constitutions. Almost all formulations of the privilege, however, limited its application to criminal prosecutions. The Virginia Declaration of Rights of 1776 proclaimed “[t]hat in all capital or criminal prosecutions no man ... can ... be compelled to give evidence against himself.”
Delaware‘s Declaration of Rights, by contrast, did not limit the privilege to criminal matters. Instead, Delaware‘s provision focused on preserving the integrity of common-law procedure in general: “[N]o man in the Court of Common Law ought to be compelled to give evidence against himself.”
Maryland‘s Declaration of Rights did not limit the application of the privilege to common-law courts, but, in contrast to all prior formulations, the Maryland Declaration allowed the state legislature to limit the scope of the privilege: “[N]o man ought to be compelled to give evidence against himself, in a common court of law, or in any other court, but in such cases as have been usually practised in this State, or may hereafter be directed by the Legislature.”
Massachusetts and New Hampshire, which enacted guarantees of rights several years after the Declaration of Independence, modified the language of the Virginia Declaration of Rights. They retained, however, Virginia‘s limitation of the privilege to criminal matters. The Massachusetts Declaration of Rights of 1780 provided that “[n]o subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself.”
A few opponents of the Constitution of 1789 pointed to the absence of an explicit privilege against self-incrimination. Once again, their discussion of the privilege assumed that, if included in the Constitution, it would apply to common-law criminal defendants only. One anti-federalist, writing under the pen name of Brutus, complained that “[f]or the security of life, in criminal prosecutions, the bills of rights of most of the States have declared, that no man ... shall ... be compelled to accuse, or furnish evidence against himself.... Are not provisions of this kind as necessary in the general government, as in that of a particular State?” Letters of Brutus No. 2 (anon. 1788), reprinted in 3 Roots, supra, at 505, 508.
In the Massachusetts ratification debate, Abraham Holmes complained that nothing in the Constitution prevented the erosion of procedural protections enjoyed by criminal defendants at common law:
[W]hen we fully consider this matter, and fully investigate the powers granted, ... we shall find Congress possessed of powers enabling them to institute judicatories little less inauspicious than a certain tribunal in Spain, which has long been the disgrace of Christendom: I mean that diabolical institution, the Inquisition.... There is nothing [in the Constitution] to prevent Congress from passing laws which shall compel a man, who is accused or suspected of crime, to furnish evidence against himself. 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution As Recommended by the General Convention at Philadelphia 111 (Jonathan Elliot ed., 1861) (emphasis added).
George Mason, who drafted the Virginia Declaration of Rights, also thought that the privilege only applied to criminal defendants. When George Nicholas cynically observed that the prohibition on torture contained in the Virginia Declaration of Rights had been repeatedly infringed, Mason responded (or mis-responded) as follows: “[T]he worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself.” Debates and Other Proceedings of the Convention of Virginia 320 (David Robinson ed., 2nd ed. 1805). Thus, pre-ratification debate about the privilege seems to have assumed a narrow privilege, applicable only to the defendant in a common-law criminal prosecution.
Four states proposed that a privilege against self-incrimination be included in the amendments to the Constitution of 1789. Yet again, all four limited the privilege to criminal prosecutions. The General Assembly of Virginia followed the Virginia Declaration of Rights in proposing “[t]hat, in all criminal and capital prosecutions, a man ... [cannot] be compelled to give evidence against himself.” Virginia Proposed Amendments art. 8 (1788), reprinted in 4 Roots, supra, at 766, 841. North Carolina and Rhode Island repeated Virginia‘s proposal almost verbatim. Although New York had no state constitutional provision guaranteeing a privilege against self-incrimination, the New York Convention recommended that the Constitution be amended to include the privilege: “[i]n all Criminal Prosecutions, the Accused ... should not be compelled to give Evidence against himself.” New York Proposed Amendments (1787), reprinted in 4 Roots, supra, at 911, 913. In short, virtually all discussion of the privilege leading up to the adoption of the self-incrimination clause of the Fifth Amendment limited the privilege to the prosecution of criminal defendants at common law.
When the Committee of the Whole took up some of Madison‘s amendments on August 17, John Laurence, a New York delegate, suggested that “this clause contained a general declaration, in some degree contrary to laws passed.... He thought it ought to be confined to criminal cases, and moved an amendment for that purpose; which amendment being adopted, the clause as amended was unanimously agreed to by the committee.” House of Representatives Debates, July-August, 1789, reprinted in 5 Roots, supra, at 1057, 1111. This limitation of the privilege to “criminal cases” moved the language of the Self-Incrimination Clause away from the Delaware model and towards the Virginia model.
Thus, the Fifth Amendment‘s Self-Incrimination Clause itself has little legislative history,35 but the Amendment‘s precedents suggest that it was intended to protect the integrity of the common-law criminal trial against the adoption of inquisitional tactics by the federal government. During the seventeenth century, an explicit privilege against self-incrimination arose only in scattered cases as a defense to inquisitorial prosecutions of religious and political beliefs. Abuse of the legal process by local officials and threats of radical reform by an anxious Parliament led colonial Americans to fear the deprivation of their common-law rights.
During the Revolution, most of the new state governments adopted a privilege against self-incrimination as one of the cluster of rights associated with the common-law jury trial, which was viewed as a defense against the potential overreaching of a tyrannous central government. The Framers wrote the privilege against self-incrimination into the Fifth Amendment to preserve one of the essential attributes of the existing criminal trial against the corrosive influence of inquisitional procedures, which the federal government might introduce to the detriment of political and religious freedom.
G.
In conclusion, the history of the privilege against self-incrimination indicates that the Fifth Amendment‘s Self-Incrimination Clause was intended as a limitation on the investigative techniques of government, not as an individual right against the world. The privilege developed in opposition to systems of law enforcement that relied on self-incrimination for the prosecution of crime.
Medieval English common-law criminal procedure relied entirely on self-incrimination. Under the ancient methods of proof, all convictions were convictions based on compelled self-incrimination. Even under early medieval criminal procedure, however, courts could not force defendants to incriminate themselves absent a legally sufficient accusation. The requirement of an accusation was encapsulated in the nemo tenetur principle.
The jury trial and defendants’ witness disqualification allowed common-law defendants to opt out of testimonial self-incrimination at trial. When added together, the jury trial, the witness disqualification, and the requirement of an accusation allowed defendants to avoid most forms of compelled, testimonial self-incrimination at common law. Special treatment of defendants stood in marked contrast to the treatment of nonparty wit-
Defendants first began to invoke the implied, common-law privilege as a shield against the inquisitional techniques of the prerogative courts of the seventeenth century. The common-law courts used the privilege as a pretext for curtailing the jurisdiction of rival tribunals. Religious and political nonconformists asserted the privilege in an effort to undermine the prosecution of crimes of conscience. Through their combined efforts, the common-law privilege came to represent a defining difference between common-law criminal trials and inquisitional proceedings of the seventeenth century. When the common-law courts made explicit their own implied privilege against self-incrimination, they viewed it through the lens of seventeenth-century events. They concluded that it would violate natural law for the government to prosecute crimes of conscience using inquisitional techniques, techniques which undermined the procedural protections of the common law.
Early American criminal procedure followed the English model of jury trials, including the implied common-law privilege. In the mid-eighteenth century, however, the colonists were confronted with abuses of power by colonial administrators and Parliament‘s creation of exceptions to the common-law jury trial. The colonists viewed the privilege against self-incrimination as a bulwark against arbitrary and intrusive criminal investigations similar to those experienced by their ancestors under the Star Chamber and the Commission. The Framers therefore included the privilege in the Bill of Rights as a limitation on the power of the federal government to tinker with the distinctive attributes of the common-law criminal trial.
V.
In the present context, we reject Gecas’ contention that “[t]he main purpose of the privilege is to protect the individual‘s privacy and his dignity and integrity as a person.” The
According to our precedent, a proceeding becomes a “criminal case” only when a witness faces conviction on the basis of his testimony in a jurisdiction subject to the
AFFIRMED.
EDMONDSON, Circuit Judge, concurring specially:
For a good, long time in English-speaking countries, this proposition has been the rule: the public has a right to every person‘s testimony. By “rule,” I mean the normal principle of law. This rule recognizes the importance of learning the truth. And under the rule, Mr. Gecas would be obliged to testify.
The rule has exceptions. The exceptions, by their nature, interfere with the search for truth. One of the exceptions—perhaps, the most important—is carved out by the
For interpreting the
This legal setting does not compel federal courts to extend the
On this basis,4 I would affirm the judgment of the district court.
BIRCH, Circuit Judge, dissenting, in which ANDERSON, DUBINA and BARKETT, Circuit Judges, join:
The court‘s majority today allows the United States government to enlist the aid of an Article III court to imprison a citizen or permanent resident until he responds to a prosecutor‘s questions, and then to transfer that citizen or permanent resident to another prison for his prosecution on the basis of his statements. The court allows such a result because the second prison is a foreign, as opposed to a domestic, one. This result is inconsistent with the language of the
Part I addresses the central issue in this case: whether a real and substantial fear of
foreign prosecution is a valid basis for the invocation of the right against self-incrimination. First, I review the policies underlying the right against self-incrimination and demonstrate that denying that right to a witness who has a reasonable fear of foreign prosecution defeats these policies. Next, I discuss the Supreme Court‘s immunity cases and conclude that these cases do not support the majority‘s holding that theI address and reject the government‘s waiver argument in Part II. I conclude in Part III that compelling Gecas to answer OSI‘s questions would violate his constitutional privilege against self-incrimination. At the end of my discussion, it is my fervent hope that the following conclusion, articulated by former Supreme Court Justice Abe Fortas, will be shared by the reader:
The fundamental value that the privilege reflects is intangible, it is true; but so is
liberty, and so is man‘s immortal soul. A man may be punished, even put to death, by the state; but ... he should not be made to prostrate himself before its majesty. Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument.4
I. APPLICATION OF THE SELF-INCRIMINATION CLAUSE TO A PERSON WHO FEARS FOREIGN PROSECUTION
I concur in Parts I and II of the majority opinion. It is clear that Gecas faces a real, substantial, reasonable, and appreciable fear of foreign prosecution. The question, therefore, is whether Gecas can validly assert his constitutional right against self-incrimination on the basis of his fear of foreign prosecution. As the majority opinion demonstrates, an internally consistent, logical argument can be constructed to support a negative answer to this question.5 As the Second Circuit‘s opinion in United States v. Balsys6 and several district court opinions7 reflect, and as I shall illustrate below, an equally internally consistent and logical argument can be made to support the opposite conclusion.
We are called upon, as appellate judges, to make the difficult choice between these two competing answers to a question that relates to a fundamental precept of our conception of government, individual rights, and the relationship between the two. I submit that the
A. The Right Against Self-Incrimination: Underlying Policies
“The privilege against self-incrimination registers an important advance in the development of our liberty—one of the great landmarks in man‘s struggle to make himself civilized.”9 Fundamentally, the
In Murphy, Justice Goldberg identified the first rationale as “our preference for an accusatorial rather than an inquisitorial system of criminal justice; [and] our fear that self-incriminating statements will be elicited by inhumane treatment and abuses.”11 This rationale is systemic in nature because its purpose is to ensure the integrity of our criminal justice system by imposing limits on the power of government as a prosecutor.12
With respect to the second rationale, Justice Goldberg observed:
[The privilege] reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; ... our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load” [and] our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life“....13
This second rationale can be described as rights-based, as it focuses on the individual‘s interest in privacy and freedom from cruelty.14
The
The majority seeks to support its conclusion that the
B. The Immunity Cases
The majority holds that the prohibition on forcing a witness to testify against his penal interests is merely a “prophylactic rule” that has no application when the using sovereign is foreign. In this section, I review the Supreme Court‘s immunity cases and conclude that these precedents do not stand for the sweeping proposition adopted by the ma-
In Kastigar v. United States,20 the Supreme Court held that “immunity from use and derivative use [of compelled testimony] is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.”21 The majority in this case interprets Kastigar as having held that the
This point is illuminated when we consider the Kastigar Court‘s explication of one aspect of Murphy. In Murphy, the Court held that a state does not violate a witness‘s
This understanding of Kastigar is consistent with the Supreme Court‘s historic approach to immunity statutes. In Brown v. Walker,29 the Court upheld a federal statute which provided that the Interstate Commerce Commission may compel the testimony of a witness over a claim of self-incrimination but afforded the witness transactional immunity for all offenses related to the compelled testimony. The Court began by reviewing the various situations in which testimony may be compelled. It concluded that “[w]hen examined, these cases will all be found to be based upon the idea that, if the testimony sought cannot possibly be used as a basis of, or in aid of, a criminal prosecution against the witness, the [privilege] ceases to apply.”30 Thus, because the statute‘s grant of immunity removed in Brown the possibility of a prosecution on the basis of the compelled testimony, the privilege did not apply.
Nothing in Brown suggests, however, that the prosecution in question must be one by the federal government, at that time the only jurisdiction subject to the
But, even granting that there were still a bare possibility that, by his disclosure, he might be subjected to the criminal laws of some other sovereignty, that ... is not a real and probable danger, with reference to the ordinary operations of the law in the ordinary courts, but a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. Such dangers it was never the object of the provision to obviate.33
In short, Brown and Kastigar confirm that whether a government subject to the strictures of the
According to the majority, the prohibition imposed by the
The object of the Amendment “was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.” Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892).... [A] witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.38
If that were not so, the Court would not have held unconstitutional the very first immunity statute which it considered in Counselman v. Hitchcock.39 In that case, the statute at issue required a witness to answer questions, regardless of the potential incriminating nature of the answers, after being granted immunity against the actual use of the compelled testimony in a subsequent criminal prosecution of the witness. The Court struck down the statute as unconstitutional because it did not grant the witness derivative use immunity; that is, the statute did not preclude the use of evidence uncovered as a result of the compelled testimony.40 If the prohibition on compulsion were merely a prophylactic rule not required by the Constitution, and in light of the familiar rule that the Court should not strike down an act of
C. The Murphy Decision
The Supreme Court‘s decision in Murphy v. Waterfront Commission42 bolsters the conclusion that a fear of foreign prosecution justifies a witness‘s invocation of the privilege against self-incrimination. Indeed, it compels that conclusion. In this section, I begin by describing the facts and holding of Murphy and then analyze each part of the Court‘s opinion to demonstrate that every step in the Court‘s reasoning dictates this conclusion.
In Murphy, two witnesses asserted their
The Supreme Court decided Murphy on the same day it decided that the
The Court in Murphy presented its analysis in three parts, all of which address the issue before us today. First, the Murphy Court admonished that whether the privilege against self-incrimination applies in a given situation “must depend, of course, on whether such an application of the privilege promotes or defeats its policies and purposes.”47 It then explained the policies and purposes of the privilege and concluded that
[m]ost, if not all, of these policies and purposes are defeated when a witness can be whipsawed into incriminating himself under both state and federal law.... This has become especially true in our age of
cooperative federalism, where Federal and State Governments are waging a united front against many types of criminal activity.48
The rule adopted by the majority in this case clearly defeats at least some of the policies and purposes of the privilege—namely those implementing the rights-based rationale of the privilege—as I have already shown.49 As one district court noted, “this ‘whipsaw’ effect does not end at our borders but is equally relevant when the prosecuting body is a foreign nation instead of a state.”50 This is especially true in this era of increasing international cooperation in criminal investigations and prosecutions.51
Second, the Court reviewed in Murphy early English and American law cases which involved invocation of the privilege against self-incrimination for fear of prosecution in a foreign jurisdiction. The Court‘s review of early American case law focused on Chief Justice Marshall‘s opinion in United States v. Saline Bank.52 In that case, the defendants invoked their privilege against self-incrimination and refused to comply with the federal government‘s request to discover certain evidence. Significantly, the evidence sought by the government exposed the defendants to criminal prosecution in Virginia state court only, to which the
This is a bill in equity for a discovery and relief. The defendants set up a plea in bar, alleging that the discovery would subject them to penalties under the statute of Virginia.
The Court below decided in favour of the validity of the plea, and dismissed the bill. It is apparent that in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is, that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. The decree of the Court below is therefore affirmed.53
The Murphy Court observed that Saline Bank “squarely holds that the privilege against self-incrimination protects a witness in a federal court from being compelled to give testimony which could be used against him in a state court,” even though the same privilege clearly did not apply to the states at that time.54
Notably, the Court had recognized the import of Saline Bank in a previous decision.
Equally instructive is the Murphy Court‘s review of early English case law involving invocation of the privilege against self-incrimination for fear of prosecution in a foreign jurisdiction.59 The Murphy Court
Second, the Murphy Court‘s interpretation of the early English cases becomes even clearer when the Court reviewed a later case, United States v. McRae,69 and concluded that it represented the English rule.
In McRae, the United States government sued in an English court for an accounting of monies allegedly received by the defendant as an agent to the confederate states during the American civil war. The defendant refused to answer on the basis that his answers might subject him to criminal penalties in the United States. On the authority of King of the Two Sicilies v. Willcox,70 the United States argued that McRae could not claim the privilege since there was no risk of incrimination under English laws. In Willcox, the Chancery Court had compelled a defendant to testify even though he claimed that his answers might incriminate him under the laws of Sicily.71 However, as the Murphy Court noted, and as the McRae court later explained, the Chancery Court had compelled the defendant‘s testimony in Willcox on two grounds: “(1) ‘The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incurring penal consequences in a foreign country, may extend ...‘; and (2) the fact that ‘in such a case, in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and willfully go within the jurisdiction of the laws he has violated.‘”72 The McRae court thus rejected the plaintiff‘s construction of Willcox and held that the defendant
The majority‘s attempt to distinguish McRae on the basis “of the obvious factual distinctions between McRae and the present case” is, at best, unconvincing. To reject the plaintiff‘s interpretation of Willcox, the McRae court did not rely on the fact that the plaintiff in that case was the United States, the very sovereign under which laws the defendant might be subject to criminal penalties. As the Murphy Court noted, “the Court of Chancery held [in McRae] that where there is a real danger of prosecution in a foreign country, the case could not be distinguished ‘in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law.‘”74 Moreover, what is relevant for our purpose is what the Murphy Court understood McRae to stand for. The Court in Murphy contrasted McRae with Willcox and declared that McRae, “not [Willcox], represents the settled ‘English rule’ regarding self-incrimination under foreign law.”75 The Court‘s decision in Murphy is quite clear: “In light of the history, policies and purposes of the privilege against self-incrimination, we now accept as correct the construction given the privilege by the English courts and by Chief Justice Marshall [in Saline Bank] and Justice Holmes [in Ballmann].”76 It is in no way confined to the limited view of McRae that the majority suggests.77
In part III of the Murphy opinion, the Court considered then-recent Supreme Court cases involving situations where a defendant in one domestic court had invoked the privilege against self-incrimination for fear of prosecution in another, domestic jurisdiction. The Court overruled in Murphy three cases which had held that the privilege can be invoked only where the danger is of a prosecution in the courts of the compelling sovereign.78 The Court‘s treatment of these cases is highly instructive. Of the three cases, two involved testimony compelled in state court which was not, at the time, subject to the
By contrast, the Murphy Court overruled Murdock because it was wrongly decided. Murdock involved a situation similar to the one presented in this case: the defendant invoked the privilege against self-incrimination in federal court for fear of prosecution in the courts of another sovereign not bound by the Self-Incrimination Clause; in Murdock, however, that other sovereign was a domestic state.83 Significantly, the Court in Murphy did not simply argue that Murdock was no
In short, I recognize that Murphy arose in a context distinguishable from this case and, thus, technically, did not decide the issue before us. I am convinced, however, that only a strained reading of the Court‘s opinion and wholesale discounting of the reasoning embodied in it could lead one to reach the conclusion of the majority in this case.
D. Purposes of the Privilege: The Historic Perspective
The majority embarks on a lengthy foray into history in order to refute Gecas‘s claim that the Self-Incrimination Clause is not only a limit on the criminal procedures of domestic governments, but also embodies a personal right that protects a person‘s privacy and dignity. The majority‘s effort is unconvincing because (1) it falls short of the ambitious proposition it seeks to advance and (2) it is contradicted by many Supreme Court discussions of this issue.
I do not dispute any of the historical facts reported by the majority. Nor do I dispute the conclusion from these facts that the privilege against self-incrimination arose in England and was later enshrined in the Constitution of several American states as well as that of the United States in large part as “a
It has been argued that permitting a witness in one jurisdiction within our federal structure to invoke the privilege on the ground that he fears prosecution in another jurisdiction:
“is rational only if the policy of the privilege is assumed to be to excuse the witness from the unpleasantness, the indignity, the ‘unnatural’ conduct of denouncing himself. [But] the policy of the privilege is not this. The policy of the privilege is to regulate a
particular government-governed relation—first, to help prevent inhumane treatment of persons from whom information is desired and, second, to satisfy popular sentiment that, when powerful and impersonal government arrays its forces against solitary governed, it would be a violation of the individual‘s ‘sovereignty’ and less than fair for the government to be permitted to conscript the knowledge of the governed to its aid. Where the crime is a foreign crime, any motive to inflict brutality upon a person because of the incriminating nature of the disclosure—any ‘conviction hunger’ as such—is absent. And the sentiments relating to the rules of war between government and governed do not apply where the two are not at war“.... “Thus, reasoning from its rationales, the privilege should not apply no matter how incriminating is the disclosure under foreign law and no matter how probable is prosecution by the foreign sovereignty. This is so whether the relevant two sovereignties are different nations, different states, or different sovereignties (such as federal and state) with jurisdiction over the same geographical area.” 8 Wigmore, Evidence (McNaughton rev., 1961), 345.
As noted in the text, however, the privilege against self-incrimination represents many fundamental values and aspirations. It is “an expression of the moral striving of the community ... a reflection of our common conscience....” Malloy v. Hogan, 378 U.S. [at] 9[, n. 7], 84 S.Ct. [at] 1494, n. 7, quoting Griswold, The Fifth Amendment Today (1955), 73. That is why it is regarded as so fundamental a part of our constitutional fabric, despite the fact that “the law and the lawyers ... have never made up their minds just what it is supposed to do or just whom it is intended to protect.” Kalven, Invoking the Fifth Amendment—Some Legal and
Impractical Considerations, 9 Bull. Atomic Sci. 181, 182. It will not do, therefore, to assign one isolated policy to the privilege, and then to argue that since “the” policy may not be furthered measurably by applying the privilege across state-federal lines, it follows that the privilege should not be so applied.88
Moreover, the majority‘s account, though long, is not exhaustive. It de-emphasizes and virtually ignores aspects of the development of the right against self-incrimination that evince its natural law roots.89 This view of the right was first articulated by John Lilburne, the person whose punishment in 1637 for refusing to take the inquisitional oath before the Star Chamber led to the abolition of that tribunal. After being subjected to severe corporal punishment for refusing to take the oath, John Lilburne addressed the crowds, explaining that the inquisitional oath was “an oath against the law of the land ... [and] absolutely against the law of God; for that law requires no man to accuse himself.”90 John Bradshaw, Lilburne‘s counsel in 1645 before the House of Commons on Lilburne‘s petition to declare his conviction by the Star Chamber illegal and award him reparations, argued that the inquisitional oath was contrary “to the laws of God, nature, and the kingdom, for any man to be his own accuser.”91 “The Levellers, led by Lilburne, ... claimed a right not to answer any questions concerning themselves, if life, liberty, or property might be jeopardized, regardless of the tribunal or government agency directing the examination, be it judicial, legislative, or executive.”92
The common-law courts later emphasized the natural law roots of the right. “To furnish testimonial evidence against himself, with or without oath, was likened to drawing
There can be no doubt that long prior to our independence the doctrine that one accused of crime could not be compelled to testify against himself had reached its full development in the common law, was there considered as resting on the law of nature, and was imbedded in that system as one of its great and distinguishing attributes.95
Consonant with this view, common-law courts even expanded the right beyond its initial concern for potential penal consequences to protect a witness from answering questions that might subject the witness to disgrace or infamy.96 For example, Lord
“Men have been asked whether they have been convicted and pardoned for felony, or whether they have been whipped for petty larceny: but they have not been obliged to answer; for though their answer in the affirmative will not make them criminal, or subject them to a punishment, yet they are matters of infamy; and if it be an infamous thing, that is enough to preserve a man from being bound to answer. A pardoned man is not guilty, his crime is purged; but merely for the reproach of it, it shall not be put upon him to answer a question whereon he will be forced to forswear or disgrace himself.... The like have been observed in other cases of odious and infamous matters which were not crimes indictable.”97
Such a broad understanding of the privilege highlights the fact that it came to focus as much on the dignity of the individual as it functioned as a limit on the power of government. That the right later contracted back to protecting the witness from answering questions that might expose him to penal consequences does not necessarily mean that individual dignity was no longer one of its underlying rationales.98
It is undeniable that the early colonists in America, like their English ancestors, asserted the right against self-incrimination in response to the government‘s political repression. But the majority‘s conclusion from this fact that the colonists asserted the right exclusively as a limit on government‘s power and not additionally as an expression of individual dignity is not a necessary one. The majority ignores the practical reality that rights cannot be asserted in the abstract; people claim rights as against the government when they perceive that the government is abusing them. When the colonists claimed the right, moreover, they claimed it as part of “English Liberty,”99 thus incorporating all that the right signified to their English ancestors into their own conceptions of the right. The right grew so in popularity that in 1735 Benjamin Franklin, hearing that a church wanted to examine the sermons of an unorthodox minister could declare: “It was contrary to the common Rights of Mankind, no Man being obliged to furnish Matter of Accusation against himself.” In 1754, a witness parried a Massachusetts legislative investigation into
As Professor Levy notes: “When a right becomes so profoundly accepted that it has been hallowed by its association with Magna Carta and has been ranked as one of the common rights of man deriving from the law of nature, it receives genuflection and praise, not critical analysis.”101 Thus, it is not surprising that the colonists or, for that matter, the Framers did not leave behind theoretical explanations and rationales for the right against self-incrimination. But history‘s silence on whether the policies underlying the right were to limit government‘s power, secure individual dignity, or both cannot be taken as absolute proof that the Framers did not seek to advance all these policies.102
It has been objected that the questions propounded to the electors contravene an established principle of law. The maxim is, “Nemo tenetur seipsum accusare (sen prodere).” It is founded on the best policy, and runs through out our whole system of jurisprudence. It is the uniform practice of courts of justice as to witnesses and jurors. It is considered cruel and unjust to propose questions which may tend to criminate the party.... The words “accusare” and “prodere” are general terms, and their sense is not confined to cases where the answers to the questions proposed would induce to the punishment of the party. If they would involve him in shame or reproach, he is under no obligation to answer them.107
Although the self-infamy rule eventually fell into disuse, the right against self-incrimination in the states simply never contracted to a literal application of section eight of the Virginia Declaration of Rights or other state constitutional provisions modeled after it.
More importantly, the right against self-incrimination was not included in the United States Constitution as one of the cluster of procedural rights afforded criminal defendants. While other such procedural rights derived from section eight of the Virginia Declaration were included in the
The fundamental value that the privilege reflects is intangible, it is true; but so is liberty, and so is man‘s immortal soul. A man may be punished, even put to death, by the state; but ... he should not be made to prostrate himself before its majesty. Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument.114
Notwithstanding the majority‘s historical analysis, the Supreme Court has long recognized the rights-based rationale of the Self-Incrimination Clause. For example, in Malloy, the Supreme Court explained: “the freedom from unconscionable invasions of privacy [guaranteed by the Fourth Amendment] and the freedom from convictions based upon coerced confessions [guaranteed by the Fifth Amendment] enjoy an ‘intimate relation’ in their perpetuation of ‘principles of humanity and civil liberty [secured] only after years of struggle.‘”115 The
In short, the majority‘s attempt to ascribe a singular policy to the Self-Incrimination Clause, and then to argue that the Clause does not apply in this case because such application does not advance the policy, must be rejected, as the Court admonished.121 The majority‘s appeal to the historic circumstances surrounding the development of the right against self-incrimination is unpersuasive and contradicted by the Supreme Court‘s own discussions of this issue.
E. Practical Considerations
Although the majority does not base its decision on the alleged negative repercussions to domestic law enforcement of a rule applying the right against self-incrimination to a witness who fears foreign prosecution, it contends that these repercussions would be substantial. Two sister circuits have found
Assume, for example, that the sale and distribution of cocaine is illegal in the nation of Ames. A citizen of Ames visits the United States on a temporary visa. She is arrested in Miami International Airport after police find five kilograms of cocaine in her luggage. The prosecution offers her immunity [from domestic prosecution] in exchange for testimony about three leaders of a drug ring operating in Southern Florida.123
The suspect in that hypothetical could still refuse to testify because of her fear of prosecution in Ames, thus frustrating the efforts of domestic law enforcement, according to the majority. The majority is wise not to have relied on this rationale for denying Gecas the
While this Court appreciates the potential burdens that expansion of the privilege might place on law enforcement officials, it cannot abrogate a right solely on this ground. In fact, the Bill of Rights as a whole stands for the proposition that the rights of the individual must, in constitutionally defined circumstances, be preeminent, even when those rights may entail hardship to law enforcement personnel.124
Moreover, the majority‘s assessment is correct, but only to a point. A fear of foreign prosecution is substantial enough to justify invocation of the right against self-incrimination only if there is a reasonable possibility that the suspect will be apprehended by the foreign government in question. This could happen in one of two ways: either the suspect voluntarily travels to Ames; or the government delivers her to Ames authorities, through deportation or extradition.125
nation Clause in the majority‘s hypothetical does not paralyze domestic law enforcement; it imposes costs on it, just as it does in every instance the government is willing to grant immunity to a witness.129
It cannot be gainsaid that the majority‘s decision in this case opens the door for the use of our courts to compel the testimony of a United States citizen in the service of a foreign sovereign‘s prosecution. Even if there were also a valid domestic law enforcement purpose for this testimony,131 it is hard to believe that the Constitution allows such a result. As Judge Rosen remarked upon the historical context for the adoption of the Bill of Rights:
This new nation had just fought a war to be free from domination of the American people by a foreign sovereign. It is difficult to credit that, given this context, the founders of this new government would have countenanced the compulsion of an American‘s testimony so that it could be turned over to an English king‘s prosecutor for prosecution of that American in England. This is particularly clear to this
Court when one considers that, if the prosecution were by an American prosecutor, the testimony certainly could not have been compelled. One can hardly believe that our Founders would have formulated a fundamental right which could be exercised on American soil under the American Constitution and which could not be abridged by an American government but which could be abridged for the benefit of a foreign government or monarch.132
Indeed, the concept that an American citizen‘s Fifth Amendment right depends upon whether he is to be subjected to domestic prosecution, with its manifold due process safeguards, or delivered into the hands of a foreign regime, whose judicial processes may or may not comport with the American paradigm of human rights, is repugnant to our nation‘s historical protection of individual liberties.
II. WAIVER
The government contends, alternatively, that Gecas waived his
[t]he privilege [against self-incrimination] attaches to the witness in each particular case in which he may be called on to testify, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same case, and without reference to his declarations at some other time or place.137
If a witness does not waive his privilege in a former trial in the same case, then he surely does not waive it either by completing a visa application thirty-five years before the institution of a deportation proceeding.138 Similarly, a person who completes a visa application does not waive his privilege as to the information contained therein in a deportation proceeding any more than a government contractor waives his privilege as to the information contained in his bid to the government by submitting such a bid, or an involuntary bankrupt waives his privilege in the bankruptcy proceeding by filing a schedule of
III. CONCLUSION
The facts in this case are as ironic as the legal principle examined is fundamental. Government prosecutors seek potentially incriminating evidence from a thirty-year resident alien who is suspected of war crimes perpetrated by the Nazi regime during World War II. The atrocities to which they would link him epitomize the depths to which humankind can descend and exemplify an absolute denial of human dignity. Yet, if the lessons from that tragic episode in history are to teach us anything it must be that the sanctity of the individual citizen must be cherished and protected relative to the power of his government—even the majority in a democratic society.
In the span of human history, the era of Nazi Germany is certainly little more than yesterday. Many of our fathers and grandfathers fought and died to liberate those who survived the holocaust. However, even the participants in that conflict were at a loss to understand how a modern, civilized nation—one that had given the world great composers, artists, musicians, craftsmen, philosophers and theologians—could so totally reject the concept of human dignity. Unless we are blind and deaf to the legacy of the
CARNES, Circuit Judge, dissenting:
I dissent from the Court‘s holding for essentially those reasons Judge Birch has ably and thoroughly explained in his opinion. Although I agree with most of what is said in that opinion, I write separately for two reasons.
The first is to point out that the Department of Justice has admitted in another court that this case is less about efforts to determine whether Gecas should be deported than it is about efforts to assist foreign countries in prosecuting him. After the panel decision was issued in this case, the United States Attorney‘s Office for Arizona filed a brief in the Ninth Circuit on behalf of the United States as appellee in a case in which
The Department of Justice sought Gecas’ compelled testimony about his association with Nazi forces during World War II to assist Israel and Lithuania who likely would prosecute him under applicable war crimes statutes. The Justice Department was actively assisting those foreign countries’ criminal investigation by sharing with them information and evidence. The treaty with Lithuania specifically mandated that the United States provide sworn testimony, such as that given by Gecas, to Lithuania. The United States in Gecas was clearly the alter ego of Israel and Lithuania.
After quoting from the Gecas panel opinion to support that characterization of this case, the United States’ brief went on to argue that the case was wrongly decided, anyway.*
I think that the United States’ brief in the Arizona case accurately described this case to the Ninth Circuit. The Department of Justice is “actively assisting” foreign countries in their criminal investigations of Gecas in order to further his prosecution in those countries. The protection afforded by the
The second reason I write separately is to suggest with appropriate deference that this issue, brightly illuminated as it is by the facts of this case, is one that the Supreme Court might wish to review and decide. The issue has percolated enough to cause a circuit split, and has produced in this Court two fine opinions exhaustively exploring every conceivable argument on each side. The closeness of the question is evidenced by this Court‘s six-to-five division. Finally, the issue is one of fundamental importance, and it is also of growing quantitive importance in view of the increasingly international nature of crime and of law enforcement cooperation.
Notes
And given the lack of historical evidence to support it, I especially doubt this proposition: that, after years of bloody and costly warfare to gain America‘s independence, these newly-independent Americans by ratifying the
The colonial courts expanded the availability of process for witnesses during the eighteenth century. The defendant‘s right to compulsory process was established before the end of the Revolution. See United States v. Burr, 25 F. Cas. 30, 32 (C.C.D.Va.1807) (No. 14692D). As of 1750, Pennsylvania, Maryland, Massachusetts, and Virginia guaranteed compulsory process for defense witnesses by statute. See Peter Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 93 (1974). By 1783, nine of the thirteen colonies had included a right to compulsory process in their state constitutions. See
This case, though ostensibly concerned with no more than the application of United States immigration law, provides a good illustration for the potential extent of international cooperation in criminal matters as well as the potential use (or, perhaps more appropriately, misuse) of the contempt power of a United States court in the service of a foreign sovereign‘s prosecution. The United States and Lithuania have entered into an agreement which provides that the two governments
agree to cooperate in prosecution of persons who are alleged to have committed war crimes, ... agree to provide mutual legal assistance concerning the prosecution of persons suspected of having committed war crimes, ... will assist each other in the location of witnesses believed to possess relevant information about criminal actions ... during World War II, and agree to intermediate and endeavor to make these witnesses available for the purpose of giving testimony in accordance with the laws of the Republic of Lithuania to authorized representatives of the United States Department of Justice.
Memorandum of Understanding Between the United States Department of Justice and the Office of the Procurator General of the Republic of Lithuania Concerning Cooperation in the Pursuit of War Criminals, Aug. 3, 1992, U.S.-Lithuania (hereinafter “Memorandum of Understanding“], ¶¶ 1-2. According to this document, a United States citizen suspected by Lithuania to have been a war criminal could be required by “authorized representatives” of the Justice Department to answer questions posed by Lithuanian authorities. Under the rule adopted by the majority today, the suspect cannot invoke his right against self-incrimination and the Justice Department could enlist the contempt power of a United States court to force the suspect to testify.
Also, under the majority‘s rule, Lithuania could then seek the suspect‘s extradition on the basis of testimony compelled by the United States government. Thus, with the cooperation of the United States government, a foreign sovereign could use the contempt power of a court in this country to compel the suspect to incriminate himself. While bringing Nazi war criminals to justice is unquestionably a laudable goal of great legal and moral importance, we cannot allow the importance of the goal to blind us to the demands of the Constitution. Under our Constitution, even suspected Nazi war criminals are innocent until proven guilty and, at least within our territory, are endowed with the same constitutional rights accorded other persons.
Moreover, even if I were to agree that the only policy of the privilege is to preserve the integrity of our criminal justice system by constraining overzealous prosecution, I would hold that the privilege applies to a proceeding that is but a step in a cooperative effort between our government and that of a foreign country to prosecute a crime. See Balsys, 119 F.3d at 135. When our government seeks to deport a person to a country on the very basis that he is suspected of having committed a crime in that country, and for the avowed purpose of bringing that person to justice, our government is as prone to the corrupting influence of overzealous prosecution as it would have been if the alleged crime was a domestic one. Indeed, the behavior of prosecutors from the OSI, the very agency seeking to compel Gecas’ testimony here, in the case of John Demjanjuk provides a vivid example of such corrupting influence. Demjanjuk, a Ukrainian immigrant, was denaturalized in 1981 and later extradited to Israel on the basis that he had misrepresented his whereabouts and activities during the war on his applications for entry into and naturalization within the United States. Specifically, the court had found that Demjanjuk was “Ivan the Terrible,” a sadistic prison guard who committed countless atrocities at the Treblinka concentration camp in Poland. See Demjanjuk v. Petrovsky, 10 F.3d 338, 339-40 (6th Cir.1993). He was convicted of this charge in Israel and sentenced to death. After seven years in an Israeli jail, the Supreme Court of Israel overturned his conviction on the basis of new evidence that became available after the breakup of the Soviet Union which showed that Demjanjuk was not Ivan the Terrible. Id. at 342. After Demjanjuk‘s return to the United States, it became apparent that the OSI had been in posses-
In the instant case, the United States has entered into an agreement with Lithuania to affirmatively assist it in obtaining information regarding suspected Nazi collaborators and to aid it in prosecuting these people. Memorandum of Understanding, supra. The district court has characterized the deportation proceeding against Gecas as a de facto extradition. This deportation proceeding against Gecas is part and parcel of an effort to prosecute Gecas for alleged participation in war crimes. Hence, the United States government essentially is both the compelling and the using sovereign. Cf. Balsys, 119 F.3d at 131 (“In the presence of ... facts [very similar to ours], it would be odd indeed to suggest that the United States government does not care about foreign prosecutions and hence that allowing witnesses to invoke the privilege does not discourage governmental overreaching.“); id. at 143 (Meskill, J, concurring in the result) (“[I]n this case the government‘s main interest in enforcing its organic laws is in facilitating a foreign prosecution.“). While I recognize that Gecas may be deported to and prosecuted by other countries on the basis of evidence gathered elsewhere, his right to remain silent should be upheld.
courts can prevent the infliction of criminal penalties based on compelled, testimonial self-incrimination by refusing to force witnesses to testify against their own penal interest. See, e.g., Saline Bank. This prophylactic rule prevents the infliction of criminal penalties on the basis of self-incrimination by keeping the testimony hidden from the opposing party.
Majority op. at 1429-30 (citation and footnote omitted). To the extent that the majority seeks to limit Saline Bank to a permissive rule, allowing—but not necessarily requiring—district courts to “refus[e]” to compel self-incriminating testimony, such a limited interpretation of Saline Bank is inconsistent with the language used by Chief Justice Marshall, as well as the Court‘s subsequent interpretation of that case in both Murphy and Ballmann. More recent decisions have also confirmed that Saline Bank stands for a broader proposition than that advanced by the majority in this case. See, e.g., Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973) (citing Saline Bank as further support for the proposition that “[t]he object of the Amendment was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.“) (internal quotation marks omitted).
Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. See [Malloy, 378 U.S. 1, 84 S.Ct. 1489]. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. [Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661].
Id. (emphasis added). Thus, the Verdugo-Urquidez Court‘s discussion of the
Moreover, neither Malloy nor Kastigar support the extremely broad propositions for which they are cited. Malloy did not limit the application of the privilege to criminal defendants. Rather, it held that “[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” Malloy, 378 U.S. at 8, 84 S.Ct. at 1493-94 (emphasis added). Decades before, the Supreme Court had made it quite clear that the privilege is not limited to criminal defendants, though it is limited to criminal matters:
It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.
Counselman, 142 U.S. at 562, 12 S.Ct. at 198 (emphasis added). Similarly, the language and reasoning of Kastigar do not support the broad proposition that the right against self-incrimination can only be claimed at a witness‘s own criminal trial, as I have already discussed. See supra Part I.B, at [8-14].
Once again, I acknowledge that both the majority and this opinion rely, to some extent, on dicta to support our respective positions. Surely, “[d]icta can sometimes be useful when it contains a persuasive analysis.” McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th Cir.1996), cert. denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1028 (1997). I respectfully submit that the dicta about the Fifth Amendment in three introductory sentences of the Verdugo-Urquidez opinion contains no analysis whatsoever, much less a persuasive analysis. By contrast, the Murphy decision is about the Self-Incrimination Clause. The Murphy Court‘s discussion of
Although the searches and seizures which deeply concerned the colonists, and which were foremost in the minds of the Framers, were those involving invasions of the home, it would be a mistake to conclude, as the Government contends, that the Warrant Clause was therefore intended to guard only against intrusions into the home....
[I]f there is little evidence that the Framers intended the Warrant Clause to operate outside the home, there is no evidence at all that they intended to exclude from protection of the Clause all searches occurring outside the home. The absence of a contemporary outcry against warrantless searches in public places
was because, aside from searches incident to arrest, such warrantless searches were not a large issue in colonial America. Thus, silence in the historical record tells us little about the Framers’ attitude toward application of the Warrant Clause to [such] search[es]. What we do know is that the Framers were men who focused on the wrongs of that day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth.
Id. at 8-9, 97 S.Ct. at 2482 (footnote omitted). This last observation is as true for the Self-Incrimination Clause as it is for the Warrant Clause.
That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
The “intimate relation” between the
It is not the breaking of his doors, ... that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property.... Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man‘s own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment.
Boyd, 116 U.S. at 630, 6 S.Ct. at 532. What is most remarkable about Lord Camden‘s decision, for the purpose of this case, is that it highlights once more that the right against self-incrimination was embedded so strongly in the law by 1765 that Lord Camden sought to invalidate a general warrant search on the basis that it is but a form of compelling self-incriminating evidence. Moreover, the intimate relationship between these two provisions of the Bill of Rights harmonizes with the idea that the Self-Incrimination Clause, like the Fourth Amendment, has individual privacy as one of its core concerns.
The Tenth Circuit in Parker posited what one commentator charitably described as a “bizarre and isolated hypothetical.” See Moshe M. Surenik, Note, Testimony Incriminating Under the Laws of a Foreign Country: Is There a Right to Remain Silent?, 11 N.Y.U. J. Int‘l L. & Pol. 359, 370 (1978). According to the Parker court,
[t]he ideology of some nations considers failure itself to be a crime and could provide punishment for the failure, apprehension, or admission of a traitorous saboteur acting for such a nation within the United States. In such a case the words “privilege against self-incrimination,” engraved in our history and law as they are, may turn sour when triggered by the law of a foreign nation.
Parker, 411 F.2d at 1070 (footnote omitted). In addition to the fact that requiring the witness to demonstrate a real and substantial fear of foreign prosecution eliminates the apprehension that a person could manufacture a potential for foreign prosecution or raise this specter solely to frustrate domestic law enforcement, the situation described by the Parker court could never arise because the witness in that case would not be subject to extradition to the foreign country in question; that is, the witness could not prove a real and substantial fear of foreign prosecution. This is so because of the “double criminality” principle embodied in extradition treaties to which the United States is a party, according to which extraditable offenses are either specifically listed in the treaty or, if unlisted, must satisfy the requirement that the alleged offense is considered to be a crime in both the requesting and the requested state. See generally M. Cherif Bassiouni, International Extradition: United States Law and Practice 388-93 (3d ed.1996); see also Balsys, 119 F.3d 122, 135.
Of course, a constitutional privilege does not disappear, nor even lose its normal vitality, simply because its use may hinder law enforcement activities. That is a consequence of nearly all the protections of the Bill of Rights, and a consequence that was originally and ever since deemed justified by the need to protect individual rights.
Some have argued that, under current law, it is not clear that a prosecutor has the authority to grant immunity from extradition. See, e.g., Comment, Criminal Law Self-Incrimination—The Fifth Amendment Protects a Witness Who Refuses to Testify for Fear of Self-Incrimination Under the Laws of a Foreign Jurisdiction. In re Cardassi, 351 F.Supp. 1080 (D.Conn.1972), 5 Rut-Cam. L.J. 146, 161 (1973); but see Geisser v. United States, 513 F.2d 862, 869 n. 11 (5th Cir.1975)(suggesting that, if extradition would violate a person‘s constitutional rights, the power of the government to extradite “may well be circumscribed by Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), holding individual constitutional rights superior to the Government‘s treaty obligations“). The Secretary of State, however, has the discretion to refuse to extradite a person, even if that person is accused of an extraditable offense. See, e.g., Bassiouni, supra note 122, at 576 & n. 250 (3d ed.1996) (reporting instances where the Secretary of State exercised such discretion). It follows that the government as a whole, through cooperation of the State and Justice departments, could overcome the suspect‘s fear of being extradited on the basis of her compelled testimony by simply promising not to extradite her. In any case, Congress has the authority to enact a law giving the executive the ability to grant formal immunity from extradition and directing the courts not to certify extraditability on that basis. See generally Balsys, 119 F.3d at 138 (noting that “Congress may change the law of the land by statute, even when doing so is inconsistent with a treaty previously in existence“) (citing Clark v. Allen, 331 U.S. 503, 508-09, 67 S.Ct. 1431, 1434-35, 91 L.Ed. 1633 (1947) and other authority). Because Congress has such authority, the majority‘s suggestion that upholding the privilege in this case would somehow compromise our own national sovereignty is erroneous. See id. at 139 n. 16. Responding to the majority‘s footnote 15, I would observe that their predicate assumption (“In most cases, these individuals cannot be deported without their testimony;“)—for which no authority is offered—is specious. In the well-documented case of John Demjanjuk (see note 51), he was deported without the use of any of his testimony. Moreover, the government in the investigation of Gecas that gives rise to this case offered immunity to Antanas Ragauskas to testify against Gecas, as noted above. The government has the ability and resources to develop evidence quite apart from requiring the target of an investigation to testify against himself.
At oral argument in this case, the attorney representing the Department of Justice was questioned about the statements concerning this case contained in the brief filed in the Ninth Circuit. He attempted to explain those statements as merely an Assistant United States Attorney‘s characterization of the panel opinion in this case. However, he also admitted that the Assistant United States Attorney who authored the Ninth Circuit brief did so after consulting with attorneys in the Department of Justice, including the Office of Special Investigations, about the Gecas case.