Immunity

prev | next

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.

Under the Fifth Amendment, the government cannot compel a person to be “a witness against himself . . . .,” although a person may waive the privilege against self-incrimination by declining to assert it, specifically disclaiming it, or testifying on the same matters prior to asserting the privilege.1 In addition, Congress has passed immunity statutes, which allow “the person presiding over the proceeding” to compel a witness, who has asserted his or her privilege against self-incrimination, to testify, provided that “no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” 2

As the Supreme Court has recognized immunity statutes “seek a rational accommodation between the imperatives of the privilege [of self-incrimination] and the legitimate demands of government to compel citizens to testify.” 3 Parliament appears to have enacted the first immunity statute in 1710,4 which, in turn, was widely copied in the colonies. Congress enacted the first federal immunity statute in 1857, providing for immunization of any person who testified before a congressional committee from prosecution for any matter “touching which” he had testified.5

The Supreme Court’s decision in Counselman v. Hitchcock soon rendered Congress’s immunity statute unenforceable.6 In Counselman, the Court held that an analogous limited-immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. The Court’s reasoning in Counselman was ambiguous; it identified two faults in the statute. First, the statute did not proscribe “derivative” evidence.7 Second, it prohibited only future use of the compelled testimony.8 The latter language accentuated a division between adherents of “transactional” immunity and of “use” immunity which has continued to the present.9

Following Counselman, Congress enacted a statute that required transactional immunity in exchange for compelled testimony.10 The Court sustained this law in Brown v. Walker.11 In 1956, the Court broadly reaffirmed Walker.12 Because the immunity acts passed after Walker were generally transactional immunity statutes,13 the question of the constitutional sufficiency of use immunity did not arise. The dicta in cases dealing with immunity, the Court continued to assert the necessity of transactional immunity.14

The Court’s incorporation of the Self-Incrimination Clause against the states in 1964 raised new considerations. In particular, state officials lacked the power to confer immunity from federal prosecution.15 As a consequence, concerns arose that if states could not compel testimony because that they lacked authority to immunize a witness in a subsequent “foreign” prosecution, their law-enforcement efforts could suffer. To avoid this outcome, 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.” 16 After this decision, Congress enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only.17 The Supreme Court upheld this statute in Kastigar v. United States.18

1: See Amdt5.4.3 General Protections Against Self-Incrimination Doctrine and Practice.
2: 18 U.S.C. § 6002. See also 18 U.S.C. § 6003 (providing specifically for “any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States . . . .” ).
3: Kastigar v. United States, 406 U.S. 441, 445–46 (1972). The Kastigar Court further noted that “The existence of these [immunity] 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.” Id. The Supreme Court has held that the Fifth Amendment 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).
4: 9 Anne, c. 14, 3–4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972).
5: Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress.
6: 142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868).
7: Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). See also id. at 586.
8: 142 U.S. at 585–86.
9: “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.
10: Ch. 83, 27 Stat. 443 (1893).
11: 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 out 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.
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). 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 Felix Frankfurter described the holding of Counselman as relating to the absence of a prohibition on the use of derivative evidence.
13: Kastigar v. United States, 406 U.S. 441, 457–58 (1972); Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Brennan, J., 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 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.
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 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: 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).
18: 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).