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When immunity trumps the Fifth Amendment

Sep 10, 2009 When immunity trumps the Fifth Amendment

The Fifth Amendment to the U.S. Constitution provides, in part, that no person "shall be compelled in any criminal case to be a witness against himself."

However, over thirty-five years ago, the Supreme Court ruled that witnesses can be compelled to give immunized testimony even if they assert their Fifth Amendment right not to be witnesses against themselves: "[T]he immunity provided by 18 U.S.C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it." Kastigar v. United States, 406 U.S. 441, 462, rehrg. denied, 408 U.S. 931 (1972).

The above-referenced 18 U.S.C. § 6002 provides

Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to–

(1) a court or grand jury of the United States, (2) an agency of the United States, or   (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but 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.

As one of the two dissenters in Kastigar, Justice Douglas wrote:

When we allow the prosecution to offer only "use" immunity we allow it to grant far less than it has taken away. For while the precise testimony that is compelled may not be used, leads from that testimony may  be pursued and used to convict the witness. 2 My view is that the framers put it beyond the power of Congress to compel anyone to confess his crimes. The Self-Incrimination Clause creates, as I have said before, "the federally protected right of silence," making it unconstitutional to use a law "to pry open one’s lips and make him a witness against himself." Ullmann v. United States, 350 U.S., at 446 (dissenting). That is indeed one of the chief procedural guarantees in our accusatorial system. Government acts in an ignoble way when it stoops to the end which we authorize today.

Kastigar, 406 U.S. at 466-67.

Too bad Justice Douglas’s view was not the majority view. Therefore, it is essential to bring a qualified lawyer along if a subpoenaed person might be asserting the Fifth Amendment in a proceeding in court, before a government agency, or a legislative body.

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