Self-Incrimination and the Concept of Immunity

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

“Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible [with the values of the Self-Incrimination Clause]. Rather they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.” 1 Footnote
Kastigar v. United States, 406 U.S. 441, 445–46 (1972) . It has been held that the Fifth Amendment itself precludes the use as criminal evidence of compelled admissions, Garrity v. New Jersey, 385 U.S. 493 (1967) , but this case and dicta in others is unreconciled with the cases that find that one may “waive” though inadvertently the privilege and be required to testify and incriminate oneself. Rogers v. United States, 340 U.S. 367 (1951) . Apparently the first immunity statute was enacted by Parliament in 17102 Footnote
9 Anne, c. 14, 3-4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972) . and it was widely copied in the colonies. The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from prosecution for any matter “touching which” he had testified.3 Footnote
Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress.

Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional witness,4 Footnote
Ch. 11, 12 Stat. 333 (1862). the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock 5 Footnote
142 U.S. 547 (1892) . The statute struck down was ch. 13, 15 Stat. 37 (1868). that an analogous limited immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was ambiguous with regard to its grounds because it identified two faults in the statute: it did not proscribe “derivative” evidence6 Footnote
Counselman v. Hitchcock, 142 U.S. 547, 564 (1892) . See also id. at 586 . and it prohibited only future use of the compelled testimony.7 Footnote
142 U.S. at 585–86 . The latter language accentuated a division between adherents of “transactional” immunity and of “use” immunity which has continued to the present.8 Footnote
“Transactional” immunity means that once a witness has been compelled to testify about an offense, he may never be prosecuted for that offense, no matter how much independent evidence might come to light; “use” immunity means that no testimony compelled to be given and no evidence derived from or obtained because of the compelled testimony may be used if the person is subsequently prosecuted on independent evidence for the offense. In any event, following Counselman , Congress enacted a statute that conferred transactional immunity as the price for being able to compel testimony,9 Footnote
Ch. 83, 27 Stat. 443 (1893). and the Court sustained this law in a five-to-four decision.10 Footnote
Brown v. Walker, 161 U.S. 591 (1896) . The majority reasoned that one was excused from testifying only if there could be legal detriment flowing from his act of testifying. If a statute of limitations had run or if a pardon had been issued with regard to a particular offense, a witness could not claim the privilege and refuse to testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. Therefore, because the statute acted as a pardon or amnesty and relieved the witness of all legal detriment, he must testify. The four dissenters contended essentially that the privilege protected against being compelled to incriminate oneself regardless of any subsequent prosecutorial effort, id. at 610 , and that a witness was protected against infamy and disparagement as much as prosecution. Id. at 628 .

“The 1893 statute has become part of our constitutional fabric and has been included ‘in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.’” 11 Footnote
Ullmann v. United States, 350 U.S. 422, 438 (1956) (quoting Shapiro v. United States, 335 U.S. 1, 6 (1948) ). So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal immunity statute.12 Footnote
“[The] sole concern [of the privilege] is . . . with the danger to a witness forced to give testimony leading to the infliction of ‘penalties affixed to the criminal acts’. . . . Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases.” 350 U.S. at 438–39 . The internal quotation is from Boyd v. United States, 116 U.S. 616, 634 (1886) . Because all but one of the immunity acts passed after Brown v. Walker were transactional immunity statutes,13 Footnote
Kastigar v. United States, 406 U.S. 441, 457–58 (1972) ; Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 25(a)(10), repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his privilege against self-incrimination as against this statute was recognized in McCarthy v. Arndstein, 266 U.S. 34, 42 (1924) , “because the present statute fails to afford complete immunity from a prosecution.” The statute also failed to prohibit the use of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920) . the question of the constitutional sufficiency of use immunity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of grant.14 Footnote
E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906) ; United States v. Monia, 317 U.S. 424, 425, 428 (1943) ; Smith v. United States, 337 U.S. 137, 141, 146 (1949) ; United States v. Murdock, 284 U.S. 141, 149 (1931) ; Adams v. Maryland, 347 U.S. 179, 182 (1954) . In Ullmann v. United States, 350 U.S. 422, 436–37 (1956) , Justice Frankfurter described the holding of Counselman as relating to the absence of a prohibition on the use of derivative evidence. But, beginning in 1964, when it applied the Self-Incrimination Clause to the states, the Court was faced with the problem that arose because a state could grant immunity only in its own courts and not in the courts of another state or of the United States.15 Footnote
Malloy v. Hogan, 378 U.S. 1 (1964) , extended the clause to the states. That Congress could immunize a federal witness from state prosecution and, of course, extend use immunity to state courts, was held in Adams v. Maryland, 347 U.S. 179 (1954) , and had been recognized in Brown v. Walker, 161 U.S. 591 (1896) . On the other hand, to foreclose the states from compelling testimony because they could not immunize a witness in a subsequent “foreign” prosecution would severely limit state law enforcement efforts. Therefore, the Court emphasized the “use” restriction rationale of Counselman and announced that as a “constitutional rule, a state witness could not be compelled to incriminate himself under federal law unless federal authorities were precluded from using either his testimony or evidence derived from it,” and thus formulated a use restriction to that effect.16 Footnote
Murphy v. Waterfront Comm’n, 378 U.S. 52, 77–99 (1964) . Concurring, Justices White and Stewart argued at length in support of the constitutional sufficiency of use immunity and the lack of a constitutional requirement of transactional immunity. Id. at 92 . See also Gardner v. Broderick, 392 U.S. 273 (1968) ; Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968) ; Garrity v. New Jersey, 385 U.S. 493 (1967) , recognizing the propriety of compelling testimony with a use restriction attached. Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indicated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was “in principle an attractive and apparently practical resolution of the difficult problem before us,” citing Murphy with apparent approval.17 Footnote
Marchetti v. United States, 390 U.S. 39, 58 (1968) .

Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only.18 Footnote
Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 201(a), 84 Stat. 922, 18 U.S.C. §§ 6002 -6003. Justice Department officials have the authority under the Act to decide whether to seek immunity, and courts will not apply “constructive” use immunity absent compliance with the statute’s procedures. United States v. Doe, 465 U.S. 605 (1984) . Soon tested, this statute was sustained in Kastigar v. United States .19 Footnote
406 U.S. 441 (1972) . A similar state statute was sustained in Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472 (1972) . “[P]rotection coextensive with the privilege is the degree of protection which the Constitution requires,” wrote Justice Powell for the Court, “and is all that the Constitution requires. . . .” 20 Footnote
Kastigar v. United States, 406 U.S. 441, 459 (1972) . See also United States v. Hubbell, 530 U.S. 27 (2000) (because the statute protects against derivative use of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena). “Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being ‘forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.’ Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” 21 Footnote
406 U.S. at 453 . Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use ban was constitutionally adequate. Id. at 462, 467 . Justices Brennan and Rehnquist did not participate but Justice Brennan’s views that transactional immunity was required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dissenting). See also New Jersey v. Portash, 440 U.S. 450 (1979) (prosecution use of defendant’s immunized testimony to impeach him at trial violates Self-Incrimination Clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of perjury. United States v. Apfelbaum, 445 U.S. 115 (1980) . See also United States v. Wong, 431 U.S. 174 (1977) ; United States v. Mandujano, 425 U.S. 564 (1976) . Because use immunity is limited, a witness granted use immunity for grand jury testimony may validly invoke his Fifth Amendment privilege in a civil deposition proceeding when asked whether he had “so testified” previously, the deposition testimony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) .

Footnotes 1 Kastigar v. United States, 406 U.S. 441, 445–46 (1972) . It has been held that the Fifth Amendment itself precludes the use as criminal evidence of compelled admissions, Garrity v. New Jersey, 385 U.S. 493 (1967) , but this case and dicta in others is unreconciled with the cases that find that one may “waive” though inadvertently the privilege and be required to testify and incriminate oneself. Rogers v. United States, 340 U.S. 367 (1951) . 2 9 Anne, c. 14, 3-4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972) . 3 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress. 4 Ch. 11, 12 Stat. 333 (1862). 5 142 U.S. 547 (1892) . The statute struck down was ch. 13, 15 Stat. 37 (1868). 6 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892) . See also id. at 586 . 7 142 U.S. at 585–86 . 8 “Transactional” immunity means that once a witness has been compelled to testify about an offense, he may never be prosecuted for that offense, no matter how much independent evidence might come to light; “use” immunity means that no testimony compelled to be given and no evidence derived from or obtained because of the compelled testimony may be used if the person is subsequently prosecuted on independent evidence for the offense. 9 Ch. 83, 27 Stat. 443 (1893). 10 Brown v. Walker, 161 U.S. 591 (1896) . The majority reasoned that one was excused from testifying only if there could be legal detriment flowing from his act of testifying. If a statute of limitations had run or if a pardon had been issued with regard to a particular offense, a witness could not claim the privilege and refuse to testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. Therefore, because the statute acted as a pardon or amnesty and relieved the witness of all legal detriment, he must testify. The four dissenters contended essentially that the privilege protected against being compelled to incriminate oneself regardless of any subsequent prosecutorial effort, id. at 610 , and that a witness was protected against infamy and disparagement as much as prosecution. Id. at 628 . 11 Ullmann v. United States, 350 U.S. 422, 438 (1956) (quoting Shapiro v. United States, 335 U.S. 1, 6 (1948) ). 12 “[The] sole concern [of the privilege] is . . . with the danger to a witness forced to give testimony leading to the infliction of ‘penalties affixed to the criminal acts’. . . . Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases.” 350 U.S. at 438–39 . The internal quotation is from Boyd v. United States, 116 U.S. 616, 634 (1886) . 13 Kastigar v. United States, 406 U.S. 441, 457–58 (1972) ; Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 25(a)(10), repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his privilege against self-incrimination as against this statute was recognized in McCarthy v. Arndstein, 266 U.S. 34, 42 (1924) , “because the present statute fails to afford complete immunity from a prosecution.” The statute also failed to prohibit the use of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920) . 14 E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906) ; United States v. Monia, 317 U.S. 424, 425, 428 (1943) ; Smith v. United States, 337 U.S. 137, 141, 146 (1949) ; United States v. Murdock, 284 U.S. 141, 149 (1931) ; Adams v. Maryland, 347 U.S. 179, 182 (1954) . In Ullmann v. United States, 350 U.S. 422, 436–37 (1956) , Justice Frankfurter described the holding of Counselman as relating to the absence of a prohibition on the use of derivative evidence. 15 Malloy v. Hogan, 378 U.S. 1 (1964) , extended the clause to the states. That Congress could immunize a federal witness from state prosecution and, of course, extend use immunity to state courts, was held in Adams v. Maryland, 347 U.S. 179 (1954) , and had been recognized in Brown v. Walker, 161 U.S. 591 (1896) . 16 Murphy v. Waterfront Comm’n, 378 U.S. 52, 77–99 (1964) . Concurring, Justices White and Stewart argued at length in support of the constitutional sufficiency of use immunity and the lack of a constitutional requirement of transactional immunity. Id. at 92 . See also Gardner v. Broderick, 392 U.S. 273 (1968) ; Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968) ; Garrity v. New Jersey, 385 U.S. 493 (1967) , recognizing the propriety of compelling testimony with a use restriction attached. 17 Marchetti v. United States, 390 U.S. 39, 58 (1968) . 18 Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 201(a), 84 Stat. 922, 18 U.S.C. §§ 6002 -6003. Justice Department officials have the authority under the Act to decide whether to seek immunity, and courts will not apply “constructive” use immunity absent compliance with the statute’s procedures. United States v. Doe, 465 U.S. 605 (1984) . 19 406 U.S. 441 (1972) . A similar state statute was sustained in Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472 (1972) . 20 Kastigar v. United States, 406 U.S. 441, 459 (1972) . See also United States v. Hubbell, 530 U.S. 27 (2000) (because the statute protects against derivative use of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena). 21 406 U.S. at 453 . Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use ban was constitutionally adequate. Id. at 462, 467 . Justices Brennan and Rehnquist did not participate but Justice Brennan’s views that transactional immunity was required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dissenting). See also New Jersey v. Portash, 440 U.S. 450 (1979) (prosecution use of defendant’s immunized testimony to impeach him at trial violates Self-Incrimination Clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of perjury. United States v. Apfelbaum, 445 U.S. 115 (1980) . See also United States v. Wong, 431 U.S. 174 (1977) ; United States v. Mandujano, 425 U.S. 564 (1976) . Because use immunity is limited, a witness granted use immunity for grand jury testimony may validly invoke his Fifth Amendment privilege in a civil deposition proceeding when asked whether he had “so testified” previously, the deposition testimony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) .

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