MR. JUSTICE GOLDBERG delivered the opinion of the Court.
We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, ante, p. 1. This case presents a related issue: whether one jurisdiction within our federal structure may compel a witness, whom it has immunized from prosecution under its laws, to give testimony which might then be used to convict him of a crime against another such jurisdiction.
Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminate them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York.
Since a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination, Counselman v. Hitchcock, 142 U.S. 547, we must now decide the fundamental constitutional question of whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction. The answer to this question must depend, of course, on whether such an application of the privilege promotes or defeats its policies and purposes.
I. THE POLICIES OF THE PRIVILEGE.
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.' " Ullmann v. United States, 350 U.S. 422, 426.
Most, if not all, of these policies and purposes are defeated when a witness "can be whipsawed into incriminating himself under both state and federal law even though" the constitutional privilege against self-incrimination is applicable to each. Cf. Knapp v. Schweitzer, 357 U.S. 371, 385 (dissenting opinion of MR. JUSTICE BLACK). This has become especially true in our age of
Our decision today in Malloy v. Hogan, supra, necessitates a reconsideration of this rule.
II. THE EARLY ENGLISH AND AMERICAN CASES.
A. The English Cases Before the Adoption of the Constitution.
In 1749 the Court of Exchequer decided East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010. The defendant in that case refused to "discover" certain information in a proceeding in an English court on the ground that it might subject him to punishment in the courts of India. The court unanimously held that the privilege against self-incrimination protected a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction. The court stated the rule to be:
In the following year, this rule was applied in a case involving separate systems of courts and law located within the same geographic area. The defendant in Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157, refused to "discover, whether she was lawfully married" to a certain individual, on the ground that if she admitted to the marriage she would be confessing to an act which, although legal under the common law, would render her
B. The Saline Bank Case.
It was against this background of English case law that this Court in 1828 decided United States v. Saline Bank of Virginia, 1 Pet. 100. The Government, seeking to recover certain bank deposits, brought suit in the District Court against the bank and a number of its stock-holders. The defendants resisted discovery of "any matters, whereby they may impeach or accuse themselves of any offence or crime, or be liable by the laws of the commonwealth of Virginia, to penalties and grievous fines . . . ." Id., at 102. The unanimous opinion of the Court, delivered by Chief Justice Marshall, reads as follows:
This case squarely holds that the privilege against self-incrimination protects a witness in a federal court from being compelled to give testimony which could be used against him in a state court.
C. Subsequent Development of the English Rule.
In 1851, the English Court of Chancery decided King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116, a case which this Court in United States v. Murdock, 284 U.S. 141, erroneously cited as representing the settled "English rule" that a witness is not protected "against disclosing offenses in violation of the laws of another country." Id., at 149. Defendants in that case resisted discovery of information, which, they asserted, might subject them to prosecution under the laws of Sicily. In denying their claim, the Vice Chancellor said:
Two reasons were given in support of this statement: (1) "The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incurring penal consequences in a foreign country, may extend. . . ," id., at 331, 61 Eng. Rep., at 128; and (2) the fact that "in such a case, in order to make the disclosure dangerous to the party who objects, it is essential that he
Within a few years, the pertinent part of King of the Two Sicilies was specifically overruled by the Court of Chancery Appeal in United States of America v. McRae, L. R., 3 Ch. App. 79 (1867), a case not mentioned by this Court in United States v. Murdock, supra. In McRae, the United States sued in an English court for an accounting and payment of moneys allegedly received by the defendant as agent for the Confederate States during the Civil War. The defendant refused to answer questions on the ground that to do so would subject him to penalties under the laws of the United States. The United States argued that the "protection from answering applies only where a person might expose himself to the peril of a penal proceeding in this country [England], and not to the case where the liability to penalty or forfeiture is incurred by the breach of the laws of
In refusing to follow King of the Two Sicilies beyond its particular facts, the court said:
III. THE RECENT SUPREME COURT CASES.
In 1896, in Brown v. Walker, 161 U.S. 591, this Court, for the first time, sustained the constitutionality of a federal immunity statute. Appellant in that case argued, inter alia, that:
The Court construed the applicable statute, however, to prevent prosecutions either in state or federal courts.
That this dictum related solely to the "legal immunity" under the Due Process Clause of the Fourteenth Amendment is apparent from the fact that it was regarded, five weeks later in Ballmann v. Fagin, 200 U.S. 186, as wholly inapplicable to cases decided under the Self-Incrimination Clause of the Fifth Amendment.
A few months after Ballmann, the Court decided Hale v. Henkel, 201 U.S. 43. Appellant had been held in contempt of a federal court for refusing to answer certain questions and produce certain documents. His refusal was based in part on the argument that the federal immunity statute did not protect him from state prosecution. The Government argued, on the authority of Brown v. Walker, supra, that the statute did protect him
This dictum, subsequently relied on in United States v. Murdock, supra, was not well founded.
The settled English rule was exactly the opposite of that stated by the Court. The most recent authoritative announcement of the English rule had been that made in 1867 in United States of America v. McRae, supra, where the Court of Chancery Appeals held that where there is a real danger of prosecution in a foreign country, the case could not be distinguished "in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law." Supra, at 63. The dictum from King of the Two Sicilies cited by the Court in Hale v. Henkel had been rejected in McRae. Moreover, the two factors relied on by the English court in King of the Two Sicilies were wholly inapplicable to federal-state problems in this country. The first—"The impossibility of knowing, as matter of law, to what cases the [danger of incrimination] may extend . . . ," supra, at 60—has no force in our country where the federal and state courts take judicial notice of each other's law. The second—that "in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated," supra, at 60-61—is equally inapplicable in our country where the witness is generally within "the jurisdiction" of the State under whose law he claims danger of incrimination, and where, if he is not, the State may demand his extradition. The second case relied on in Hale v. Henkel, supra—The Queen v. Boyes, supra—was irrelevant to the issue there presented. The Queen v. Boyes did not involve
Thus, the authorities relied on by the Court in Hale v. Henkel provided no support for the conclusion that under the Fifth Amendment "the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty." Nor was its attempt to distinguish Chief Justice Marshall's opinion in United States v. Saline Bank of Virginia, supra, more successful. The Court's reading of Saline Bank suggests that the state, rather than the federal, privilege against self-incrimination applies to federal courts when they are administering state substantive law. The most reasonable
The weakness of the Hale v. Henkel dictum was immediately recognized both by lower federal courts
In a subsequent case, decided in 1933, this Court said that the question—whether "one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law"—was "specifically reserved in Vajtauer v. Comm'r of Immigration," and was not "definitely settled" until 1931. United States v. Murdock, 290 U.S. 389, 396.
In 1931, the Court decided United States v. Murdock, 284 U.S. 141, the case principally relied on by respondent here. Appellee had been indicted for failing to supply certain information to federal revenue agents. He claimed that his refusal had been justified because it rested on the fear of federal and state incrimination. The Government argued that the record supported only a claim of state, not federal, incrimination, and that the Fifth Amendment does not protect against a claim of state incrimination. Appellee did not respond to the latter argument, but instead rested his entire case on the claim that his refusals had in each instance been based on federal as well as state incrimination. In support of
This Court decided that appellee's refusal to answer rested solely on a fear of state prosecution, and then concluded, in one brief paragraph, that such a fear did not justify a refusal to answer questions put by federal officers.
The Court gave three reasons for this conclusion. The first was that:
This argument, however, begs the critical question. No one would suggest that state law could prevent a proper federal investigation; the Court had already held that the Federal Government could, under the Supremacy Clause, grant immunity from state prosecution, and that, accordingly, state law could not prevent a proper federal investigation. The critical issue was whether the Federal Government, without granting immunity from state prosecution, could compel testimony which would incriminate under state law. The Court's first "reason" was not responsive to this issue.
The second reason given by the Court was that:
As has been demonstrated, the cases cited were in one instance overruled and in the other inapposite, and the English rule was the opposite from that stated in this Court's opinion: The rule did "protect witnesses against disclosing offenses in violation of the laws of another country." United States of America v. McRae, supra.
The third reason given by the Court in Murdock was that:
This argument—that the rule in question had already been "established" by the past decisions of the Court—is not accurate. The first case cited by the Court—Counselman v. Hitchcock—said nothing about the problem of incrimination under the law of another sovereign. The second case—Brown v. Walker—merely held that the
Thus, neither the reasoning nor the authority relied on by the Court in United States v. Murdock, 284 U.S. 141, supports its conclusion that the Fifth Amendment permits the Federal Government to compel answers to questions which might incriminate under state law.
In 1944 the Court, in Feldman v. United States, 322 U.S. 487, was confronted with the situation where evidence compelled by a State under a grant of state immunity was "availed of by the [Federal] Government" and
The Court concluded, therefore, by analogy to the then extant search and seizure rule, that evidence compelled by a state grant of immunity could be used by the Federal Government. But the legal foundation upon which that 4-to-3 decision rested no longer stands. Evidence illegally seized by state officials may not now be received in federal courts. In Elkins v. United States, 364 U.S. 206, the Court held, over the dissent of the writer of the Feldman decision, that "evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's
The relevant cases decided by this Court since Feldman fall into two categories. Those involving a federal immunity statute—exemplified by Adams v. Maryland, 347 U.S. 179—in which the Court suggested that the Fifth Amendment bars use by the States of evidence obtained by the Federal Government under the threat of contempt. And those involving a state immunity statute —exemplified by Knapp v. Schweitzer, 357 U.S. 371—where the Court, applying a rule today rejected, held the Fifth Amendment inapplicable to the States.
In Adams v. Maryland, supra, petitioner had testified before a United States Senate Committee investigating crime, and his testimony had later been used to convict him of a state crime. A federal statute at that time provided that no testimony given by a witness in congressional inquiries "shall be used as evidence in any criminal proceeding against him in any court . . . ." 62 Stat. 833. The State questioned the application of the statute to petitioner's testimony and the constitutionality of the statute if construed to apply to state courts. The Court, in an opinion joined by seven members, made the following significant statement: "a witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute." 347 U. S., at 181.
Knapp v. Schweitzer, 357 U.S. 371, involved a state contempt conviction for a witness' refusal to answer questions, under a grant of state immunity, on the ground that his answers might subject him to prosecution under federal law. Petitioner claimed that "the Fifth Amendment gives him the privilege, which he can assert against either a State or the National Government, against giving testimony that might tend to implicate him in a violation" of federal law. Id., at 374. The Court, applying
The Court has today rejected that rule, and with it, all the earlier cases resting on that rule.
The foregoing makes it clear that there is no continuing legal vitality to, or historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.
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
We must now decide what effect this holding has on existing state immunity legislation. In Counselman v. Hitchcock, 142 U.S. 547, this Court considered a federal statute which provided that no "evidence obtained from a party or witness by means of a judicial proceeding . . . shall be given in evidence, or in any manner used against him . . . in any court of the United States . . . ." Id., at 560. Notwithstanding this statute, appellant, claiming his privilege against self-incrimination, refused to answer certain questions before a federal grand jury. The Court said "that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect." Id., at 585. Applying this principle to the facts of that case, the Court upheld appellant's refusal to answer on the ground that the statute:
and that it:
Applying the holding of that case to our holdings today that the privilege against self-incrimination protects a state witness against federal prosecution, supra, at 77-78, and that "the same standards must determine whether [a witness'] silence in either a federal or state proceeding is justified," Malloy v. Hogan, ante, at 11, we hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.
It follows that petitioners here may now be compelled to answer the questions propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court's decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal
It is so ordered.
MR. JUSTICE BLACK concurs in the judgment and opinion of the Court for the reasons stated in that opinion and for the reasons stated in Feldman v. United States, 322 U.S. 487, 494 (dissenting opinion), as well as Adamson v. California, 332 U.S. 46, 68 (dissenting opinion); Speiser v. Randall, 357 U.S. 513, 529 (concurring opinion); Bartkus v. Illinois, 359 U.S. 121, 150 (dissenting opinion); and Abbate v. United States, 359 U.S. 187, 201 (dissenting opinion).
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, concurring in the judgment.
Unless I wholly misapprehend the Court's opinion, its holding that testimony compelled in a state proceeding over a witness' claim that such testimony will incriminate him may not be used against the witness in a federal criminal prosecution rests on constitutional grounds. On that basis, the contrary conclusion of Feldman v. United States, 322 U.S. 487, is overruled.
I believe that the constitutional holding of Feldman was correct, and would not overrule it. To the extent, however, that the decision in that case may have rested
The Court's constitutional conclusions are thought by it to follow from what it terms the "policies" of the privilege against self-incrimination and a re-examination of various cases in this Court, particularly in the context of early English law. Almost entirely absent from the statement of "policies" is any reference to the particular problem of this case; at best, the statement suggests the set of values which are on one side of the issue. The discussion of precedent is scarcely more helpful. It intertwines decisions of this Court with decisions in English courts, which perhaps follow a different rule,
(1) With two early and somewhat doubtful exceptions, this Court has consistently rejected the proposition that
(2) Without any exception, in every case involving an immunity statute in which the Court has treated the question now before us, it has rejected the present majority's views.
The first of the two exceptional cases is United States v. Saline Bank of Virginia, 1 Pet. 100, decided in 1828; the entire opinion in that case is quoted in the majority opinion, ante, pp. 59-60. It is not clear whether that case has any bearing on the privilege against self-incrimination at all.
Since the Jack case which the Court cited immediately after referring to Saline Bank had been decided just a few weeks before Ballmann and was contrary to Saline Bank, it is plain that the Court was not approving and applying the latter case. The explanation for the Court's inclusion of this ambiguous and inconclusive discussion of state incrimination is surely the fact that Ballmann had failed to set up the claim of federal incrimination on which the Court relied.
Neither of these two cases, therefore, "squarely holds," ante, p. 60; see ante, p. 65, that a danger of incrimination under state law relieves a witness from testifying before federal authorities. More to the point, whatever force these two cases provide for the majority's position is wholly vitiated by subsequent cases, which are flatly contradictory to that position.
The present majority characterizes this statement as "cryptic dictum," ante, p. 65. But, I submit, there is nothing cryptic about it. Nor is it dictum. The Court assumed for purposes of that case that the Fourteenth Amendment required that a state statute "give sufficient immunity from prosecution or punishment," id., at 380, and it is evident from the opinion that the Court regarded the remoteness of a danger of prosecution in the courts of another jurisdiction, including the federal courts, as a basis for holding generally, and not merely on the facts of the case before it, that a state immunity statute need not protect against such danger. See id., at 381-382.
The next case is Hale v. Henkel, 201 U.S. 43, decided one year later, shortly after Ballmann. The Court there rejected the appellant's argument that the federal immunity statute to be valid had to confer immunity from punishment under state law. It said:
In Vajtauer v. Commissioner of Immigration, 273 U.S. 103, which did not involve an immunity statute, the Court
The Court has not until now deviated from that definitive ruling. In later proceedings in the Murdock case, the Court said it was "definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law." 290 U.S. 389, 396. The Court adhered to this view in Feldman, supra, where it established an equivalent rule allowing the use in a federal court of testimony given in a state court. The general principle was said to be one of "separateness in the operation of state and federal criminal laws and state and federal immunity provisions." 322 U. S., at 493-494.
In Adams v. Maryland, 347 U.S. 179, the Court held that a federal immunity statute,
In Knapp v. Schweitzer, 357 U.S. 371, the Court again upheld the validity of state immunity statutes against the charge that they did not, as they could not, confer immunity from federal prosecution. The Court adhered to its position in Knapp, supra, in 1959, in Mills v. Louisiana, 360 U.S. 230.
This, then, is the "history" mustered by the Court in support of overruling the sound constitutional doctrine lying at the core of Feldman.
Part I of this opinion shows, I believe, that the Court's analysis of prior cases hardly furnishes an adequate basis for a new departure in constitutional law. Even if the Court's analysis were sound, however, it would not support reversal of the Feldman rule on constitutional grounds.
If the Court were correct in asserting that the "separate sovereignty" theory of self-incrimination should be discarded, that would, as the Court says, lead to the conclusion that "a state witness [is protected] against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law." Ante, p. 78. However, dealing strictly with the situation presented by this case, that conclusion does not in turn lead to a constitutional rule that the testimony of a state witness (or evidence to which his testimony leads) who is compelled to testify in state proceedings may not be used against him in a federal prosecution. Protection which the Due Process Clause affords against the States is quite obviously not any basis for a constitutional
The Court avoids this problem by mixing together the Fifth Amendment and the Fourteenth and talking about "the constitutional privilege against self-incrimination," ante, pp. 77-78. Such an approach, which deals with "constitutional" rights at large, unrelated either to particular provisions of the Constitution or to relevant differences between the States and the Federal Government warns of the dangers for our federalism to which the "incorporation" theory of the Fourteenth Amendment leads. See my dissenting opinion in Malloy v. Hogan, ante, p. 14.
The Court's reasons for overruling Feldman thus rest on an entirely new conception of the Fifth Amendment, namely that it applies to federal use of state-compelled incriminating testimony. The opinion, however, contains nothing at all to contradict the traditional, well-understood conception of the Fifth Amendment, to which, therefore, I continue to adhere:
It is no service to our constitutional liberties to encumber the particular provisions which safeguard them with a gloss for which neither the text nor history provides any support.
Accordingly, I cannot accept the majority's conclusion that a rule prohibiting federal authorities from using in aid of a federal prosecution incriminating testimony compelled in state proceedings is constitutionally required.
I would, however, adopt such a rule in the exercise of our supervisory power over the administration of federal criminal justice. See McNabb v. United States, 318 U.S. 332, 340-341. The rule seems to me to follow from the Court's rejection, in the exercise of its supervisory power, of the "silver platter" doctrine as applied to the use in federal courts of evidence unconstitutionally seized by state officers. Elkins v. United States, 364 U.S. 206.
Since I reject the majority's argument that the "separate sovereignty" theory of self-incrimination is historically unfounded, I do not base my conclusion on the holding in Malloy, ante, that due process prohibits a State from compelling a witness to testify. My conclusion is based rather on the ground that such a rule is protective of the values which the federal privilege against self-incrimination expresses, without in any way interfering with the independent action of the States and the Federal Government in their respective spheres. Increasing interaction between the State and Federal Governments speaks strongly against permitting federal officials to make prosecutorial use of testimony which a State has compelled when that same testimony could not constitutionally have been compelled by the Federal Government and then used against the witness. Prohibiting such use in no way limits federal power to investigate and prosecute for federal crime, which power will be as full after a State has completed an investigation as before.
On this basis, I concur in the judgment of the Court.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.
The Court holds that the constitutional privilege against self-incrimination is nullified "when a witness `can be whipsawed into incriminating himself under both state and federal law even though' the constitutional privilege against self-incrimination is applicable to each." Ante, p. 55. Whether viewed as an exercise of this Court's supervisory power over the conduct of federal law enforcement officials or a constitutional rule necessary for meaningful enforcement of the privilege, this holding requires that compelled incriminating testimony given in a state proceeding not be used in any manner by federal officials in connection with a federal criminal prosecution. Since these petitioners declined to answer in the belief that their very testimony as well as evidence derived from it could be used by federal authorities in a criminal prosecution against them, they should be afforded an opportunity to purge themselves of the civil contempt convictions by answering the questions. Cf. Raley v. Ohio, 360 U.S. 423.
In reaching its result the Court does not accept the far-reaching and in my view wholly unnecessary constitutional
Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to
And only recently the Court declared that immunity statutes have "become part of our constitutional fabric. . . included `. . . in virtually all of the major regulatory enactments of the Federal Government,' " and "the States . . . have passed numerous statutes compelling testimony in exchange for immunity in the form either of complete amnesty or of prohibition of the use of the compelled testimony." Ullmann v. United States, 350 U.S. 422, 438.
It is not without significance that there were two ostensibly inconsistent lines of cases in this Court regarding the external reach of the privileges in respect to the laws of another jurisdiction. In the cases involving refusals to answer questions in a federal grand jury or discovery proceedings on the ground of incrimination under state law, absent any immunity statute, the Court suggested that the Fifth Amendment privilege protected such answers, United States v. Saline Bank, 1 Pet. 100; Ballmann v. Fagin, 200 U.S. 186, while in the cases involving refusals to answer after immunity was conferred, the Court indicated that immunity in regard to a prosecution
To answer that the underlying policy of the privilege subordinates the law enforcement function to the privilege of an individual will not do. For where there is only one government involved, be it state or federal, not only is the danger of prosecution more imminent and indeed the likely purpose of the investigation to facilitate prosecution and conviction, but that authority has the choice of exchanging immunity for the needed testimony. To transform possible federal prosecution into a source of
Nor will it do to say that the Congress could reinstate state power by authorizing state officials to confer absolute immunity from federal prosecutions. Congress has established highly complicated procedures, requiring the approval of the Attorney General, before a limited group of federal officials may grant immunity from federal prosecutions. E. g., 18 U. S. C. § 3486,
Neither the conflict between state and federal interests nor the consequent enthronement of federal agencies as the only law enforcement authorities with effective power to compel testimony is necessary to give full effect to a privilege against self-incrimination whose external reach embraces federal as well as state law. The approach need not and, in light of the above considerations, should not be in terms of the State's power to compel the testimony rather than the use to which such testimony can be put. It is unquestioned that an immunity statute, to be valid, must be coextensive with the privilege which it displaces, but it need not be broader. Counselman v. Hitchcock, 142 U.S. 547; Brown v. Walker, 161 U.S. 591; Hale v. Henkel, 201 U.S. 43. If the compelled incriminating testimony in a state proceeding cannot be put to any use whatsoever by federal officials, quite obviously the witness' privilege against self-incrimination is not infringed. For the privilege does not convey an absolute right to remain silent. It protects a witness from being compelled to furnish evidence that could result in his being subjected to a criminal sanction, Hoffman v. United States, 341 U.S. 479; Mason v. United States, 244 U.S. 362, if, but only if, after the disclosure the witness will be in greater danger of prosecution and conviction.
It is argued that a rule only forbidding use of compelled testimony does not afford absolute protection against the possibility of a federal prosecution based in part on the compelled testimony. It is said that absent any deliberate attempt by federal officers to utilize the testimony the very identification and testimony of the witness in the state proceedings, perhaps in the newspapers, may
In the absence of any misconduct or collusion by federal officers, whatever increase there is, if any, in the likelihood of federal prosecution following the witness' appearance before a state grand jury or agency results from the inferences drawn from the invocation of the privilege to specific questions on the ground that they are incriminating under federal law and not from the fact the witness has testified in what is frequently an in camera proceeding under a grant of immunity. Whether in camera or not, the testimony itself is hardly reported in newspapers and the transcripts and records of the state proceedings are not part of the files of the Federal Government. Access and use require misconduct and collusion, a matter quite susceptible of proof. But this is quibbling, since the very fact that a witness is called in a state crime investigation is likely to be based upon knowledge, or at least a suspicion based on some information, that the witness is implicated in illegal activities, which knowledge and information are probably available to federal authorities.
The danger that a defendant may not be able to establish that other evidence was obtained through the unlawful use by federal officials of inadmissible compelled testimony is insubstantial. The privilege protects against real dangers, not remote and speculative possibilities. Brown v. Walker, 161 U.S. 591, 599-600; Heike v. United States, 227 U.S. 131; Mason v. United States, 244 U.S. 362. First, one might just as well argue that the Constitution requires absolute immunity from prosecution wherever
Counselman v. Hitchcock, 142 U.S. 547, does not require that absolute immunity from state prosecution be conferred on a federal witness and the Court has declined on many occasions to so read it, the limitation of the privilege to one sovereign rationale aside, Brown v. Walker, 161 U.S. 591; Adams v. Maryland, 347 U.S. 179; Ullmann v. United States, 350 U.S. 422; Reina v. United States, 364 U.S. 507.
The Constitution does not require that immunity go so far as to protect against all prosecutions to which the testimony relates, including prosecutions of another government, whether or not there is any causal connection between the disclosure and the prosecution or evidence offered at trial. In my view it is possible for a federal prosecution to be based on untainted evidence after a grant of federal immunity in exchange for testimony in a federal criminal investigation. Likewise it is possible that information gathered by a state government which has an important but wholly separate purpose in conducting the investigation and no interest in any federal prosecution will not in any manner be used in subsequent federal proceedings, at least "while this Court sits" to review invalid convictions. Panhandle Oil Co. v. Knox, 277 U.S. 218, at 223 (Holmes, J., dissenting). It is precisely this possibility of a prosecution based on untainted evidence that we must recognize. For if it is meaningful
"The real evil aimed at by the Fifth Amendment's flat prohibition against the compulsion of self-incriminatory testimony was that thought to inhere in using a man's compelled testimony to punish him." Feldman v. United States, 322 U.S. 487, 500 (BLACK, J., dissenting). I believe the State may compel testimony incriminating under federal law, but the Federal Government may not use such testimony or its fruits in a federal criminal proceeding. Immunity must be as broad as, but not harmfully and wastefully broader than, the privilege against self-incrimination.
"is rational only if the policy of the privilege is assumed to be to excuse the witness from the unpleasantness, the indignity, the `unnatural' conduct of denouncing himself. [But] the policy of the privilege is not this. The policy of the privilege is to regulate a particular government-governed relation—first, to help prevent inhumane treatment of persons from whom information is desired and, second, to satisfy popular sentiment that, when powerful and impersonal government arrays its forces against solitary governed, it would be a violation of the individual's `sovereignty' and less than fair for the government to be permitted to conscript the knowledge of the governed to its aid. Where the crime is a foreign crime, any motive to inflict brutality upon a person because of the incriminating nature of the disclosure—any `conviction hunger' as such—is absent. And the sentiments relating to the rules of war between government and governed do not apply where the two are not at war. . . .
"Thus, reasoning from its rationales, the privilege should not apply no matter how incriminating is the disclosure under foreign law and no matter how probable is prosecution by the foreign sovereignty. This is so whether the relevant two sovereignties are different nations, different states, or different sovereignties (such as federal and state) with jurisdiction over the same geographical area." 8 Wigmore, Evidence (McNaughton rev., 1961), 345.
As noted in the text, however, the privilege against self-incrimination represents many fundamental values and aspirations. It is "an expression of the moral striving of the community.. . . a reflection of our common conscience . . . ." Malloy v. Hogan, ante, p. 9, n. 7, quoting Griswold, The Fifth Amendment Today (1955), 73. That is why it is regarded as so fundamental a part of our constitutional fabric, despite the fact that "the law and the lawyers . . . have never made up their minds just what it is supposed to do or just whom it is intended to protect." Kalven, Invoking the Fifth Amendment—Some Legal and Impractical Considerations, 9 Bull. Atomic Sci. 181, 182. It will not do, therefore, to assign one isolated policy to the privilege, and then to argue that since "the" policy may not be furthered measurably by applying the privilege across state-federal lines, it follows that the privilege should not be so applied.
"that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things—not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. . . .
Now, in the present case, no one seriously supposes that the witness runs the slightest risk of an impeachment . . . . No instance of such a proceeding in the unhappily too numerous cases of bribery which have engaged the attention of the House of Commons has ever occurred, or, so far as we are aware, has ever been thought of." Id., at 330-331.
"But even granting that there were still a bare possibility that by his disclosure he might be subjected to the criminal laws of some other sovereignty, that, as Chief Justice Cockburn said in The Queen v. Boyes, 1 B. & S. 311, in reply to the argument that the witness was not protected by his pardon against an impeachment by the House of Commons, is not a real and probable danger, with reference to the ordinary operations of the law in the ordinary courts, but `a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.' Such dangers it was never the object of the provision to obviate." 161 U. S., at 608. See note 7, supra.
The lower federal courts were also following the English rule that a refusal to answer questions could legitimately be based on the danger of incrimination in another jurisdiction. In the case of In re Graham, 10 Fed. Cas. 913 (No. 5,659), for example, the witness refused to answer questions asked by a federal official on the ground that answers to such questions might expose "him to a criminal prosecution under the laws of the state of New York." Id., at 914. Judge Blatchford held that the witness was "privileged from answering the questions." Ibid. In the case of In re Hess, 134 F. 109, decided in 1905, where a bankrupt refused to answer certain questions on the ground that they might tend to incriminate him under state law, the court said:
"Section 860 of the Revised Statutes only prohibits the use of evidence that may be obtained from the bankrupt's books in prosecutions in the federal courts. There is nothing in this section which extends that immunity to the use of such evidence in the state courts, and there is nothing to prevent the trustee from making use of the bankrupt's books in a criminal prosecution against him instituted in the state courts. Obviously, therefore, if section 7, cl. 9, of the bankrupt act, does not protect him against the use of the evidence which he alleges is contained in his books, of an incriminating nature, in either the state or federal courts, and section 860 of the Revised Statutes extends the immunity only to federal courts, and not to state courts, it is plain that whatever incriminating evidence the books may contain could be used without restriction in the state courts for the purpose of convicting him of any crime for which he might be indicted there, and, in consequence of this danger to him, the plea of his constitutional privilege must prevail." Id., at 112.
Also see, e. g., In re Koch, 14 Fed. Cas. 832 (No. 7,916); In re Feldstein, 103 F. 269; In re Henschel. 7 Am. Bankr. R. 207; In re Kanter. 117 F. 356; In re Hooks Smelting Co., 138 F. 954, 146 F. 336.
The cited authority does not, however, support the argument "that Saline Bank stands for no constitutional principle whatever." That case was cited by Story, intermingled with more than a dozen other cases, in a footnote to the following statement: "Courts of Equity . . . will not compel a discovery in aid of a criminal prosecution. . . for it is against the genius of the Common Law to compel a party to accuse himself; and it is against the general principles of Equity to aid in the enforcement of penalties or forfeitures." (Emphasis added.) This statement suggests that the common-law privilege and the equitable rule are so intermeshed that it serves no useful purpose to attempt to ascertain whether a given application by a Court of Equity rested on the former or the latter.
In King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116 (1851), the Vice-Chancellor had said that "the rule of protection [against self-incrimination] is confined to what may tend to subject a party to penalties by our own laws . . . ." 1 Sim. (N. S.), at 331, 61 Eng. Rep., at 128 (emphasis added). The Lord Chancellor said in McRae, supra, that King of the Two Sicilies had been "most correctly decided," L. R., 3 Ch. App., at 85, but that the general rule there laid down was unnecessarily broad. He declined to apply the rule in McRae on the ground that "the presumed ignorance of the Judge as to foreign law . . . [had been] completely removed by the admitted statements upon the pleadings, in which the exact nature of the penalty or forfeiture incurred by the party objecting to answer is precisely stated . . . ," L. R., 3 Ch. App., at 85, and the further ground, noted above, that the property subject to a forfeiture was "within the power of the United States," id., at 87.
The other two English cases which the majority cites in this connection were decided more than 100 years earlier than King of the Two Sicilies. Moreover, both cases involved disclosures which would have been incriminating under a separate system of laws operating within the same legislative sovereignty. East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749); Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157 (Ch. 1750). In King of the Two Sicilies, which involved the laws of another sovereign, the Vice-Chancellor observed that there was an "absence of all authority on the point" raised before him. 1 Sim. (N. S.), at 331, 61 Eng. Rep., at 128.
There is little agreement among the authorities on the effect of these cases. See Grant, Federalism and Self Incrimination: Common Law and British Empire Comparisons, 5 U. C. L. A. L. Rev. 1-8; 8 Wigmore, Evidence (3d ed. 1940), § 2258, n. 3; Kroner, Self Incrimination: The External Reach of the Privilege, 60 Col. L. Rev. 816, 820, n. 26; McNaughton, Self-Incrimination Under Foreign Law, 45 Va. L. Rev. 1299, 1302.
That this case has meant different things to different people is evidenced by the opinion in Hale v. Henkel, 201 U.S. 43, in which the Court distinguished Saline Bank, presumably inadequately, on the ground that in it "the Federal court was simply administering the state law, and no question arose as to a prosecution under another jurisdiction." 201 U. S., at 69.
In Jack, supra, the Court described Brown as follows:
"In the subsequent case of Brown v. Walker, 161 U.S. 591, the statute there involved was held to afford complete immunity to the witness, and he was therefore obliged to answer the questions that were put to him, although they might tend to incriminate him. In that case it was contended, on the part of the witness, that the statute did not grant him immunity against prosecutions in the state courts, although it granted him full immunity from prosecution by the Federal Government. This contention was held to be without merit. While it was asserted that the law of Congress was supreme, and that judges and courts in every State were bound thereby, and that therefore the statute granting immunity would probably operate in the state as well as in the Federal courts, yet still, and aside from that view, it was said that while there might be a bare possibility that a witness might be subjected to the criminal laws of some other sovereignty, it was not a real and probable danger, but was so improbable that it needed not to be taken into account." 199 U. S., at 381. (Emphasis added.)
Brown is cited for the proposition that "full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self-incrimination," in United States v. Murdock, 284 U.S. 141, 149. And see Vajtauer v. Commissioner of Immigration. 273 U.S. 103, 113.
The majority is incorrect when it states, ante, p. 67, that the Court in Hale, relying on King of the Two Sicilies, supra, disregarded a "settled English rule" contrary to its own conclusion. See note 1, supra.
The majority is, however, correct in stating that the decision in Elkins v. United States, 364 U.S. 206, discarding the "silver platter" doctrine has an important bearing on this case. See infra, p. 91.
The Senate Crime Committee stated in its third interim report:
"Any program for controlling organized crime must take into account the fundamental nature of our governmental system. The enforcement of the criminal law is primarily a State and local responsibility." S. Rep. No. 307, 82d Cong., 1st Sess., 5 (1951).
Attorney General Mitchell commented:
"Experience has shown that when Congress enacts criminal legislation of this type [dealing with local crime] the tendency is for the State authorities to cease their efforts toward punishing the offenders and to leave it to the Federal authorities and the Federal Courts. That has been the experience under the Dyer Act." 72 Cong. Rec. 6214 (1930).
National enactments which touch upon these areas are not designed directly to suppress activities illegal under state law but to assist state enforcement agencies in the administration of their own statutes. See Int. Rev. Code of 1954, §§ 4701-4707, 4711-4716 (narcotics tax); Int. Rev. Code of 1954, §§ 4401-4404, 4411-4413, 4421-4423 (wagering tax). See generally, Schwartz, Federal Criminal Jurisdiction and Prosecutors' Discretion, 13 Law and Contemp. Prob. 64, 83-86 (1948); Comment, 72 Yale L. J. 108, 140-142.
"[I]f any measure is to be enacted permitting the granting of immunity to witnesses before either House of Congress, or its committees, it should vest the Attorney General, or the Attorney General acting with the concurrence of appropriate members of Congress, with the authority to grant such immunity, and if the testimony is sought for a court or grand jury that the Attorney General alone be authorized to grant the immunity." (Remarks of Attorney General Brownell.) Id., at 19.
Congress adopted this view in recent immunity statutes. 18 U. S. C. § 3486; 18 U. S. C. § 1406. See also Comment, 72 Yale L. J. 1568, 1598-1610 (1963).
That case also relied on the doctrine since repudiated in Elkins v. United States, 364 U.S. 206, that evidence illegally seized by state officials is admissible in federal courts.
Neither Congress nor the States have read Counselman to mean that the Constitution requires absolute immunity from prosecution. There are numerous statutes providing for immunity from use, not prosecution, in exchange for incriminatory testimony. E. g., 30 Stat. 548 (1898), 11 U. S. C. § 25; 18 U. S. C. § 1406; 49 U. S. C. § 9; 18 U. S. C. § 3486. Ala. Code, Tit. 9, § 39; Ala. Code, Tit. 29, § 171; Ariz. Rev. Stat. Ann., § 13-384; Ark. Const., Art. III, § 9; Cal. Const., Art. 4, § 35; Colo. Rev. Stat., § 40-8-8; id., § 49-17-8; Conn. Gen. Stat. (1958 rev.), § 12-2 and § 12-53; Fla. Stat. Ann., § 55.59 and § 350.60; Idaho Code Ann., § 48-308 (Supp. 1963); Ill. Ann. Stat., c. 100 1/2, § 4; Ky. Rev. Stat., § 124.330; Mich. Stat. Ann., § 7.411 (17); N. J. Rev. Stat., § 2A:93-9.
The effect of the rule petitioners urge would be to hold the above and numerous other statutes barring use but not prosecution unconstitutional.