# Murphy v. Waterfront Commission of New York Harbor/Concurrence Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Black
United States Supreme Court
378 U.S. 52
Murphy v. Waterfront Commission of New York Harbor
Argued: March 5, 1964. --- Decided: June 15, 1964
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, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408 (dissenting opinion), as well as Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (dissenting opinion); Speiser v. Randall, 357 U.S. 513, 529, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460 (concurring opinion); Bartkus v. Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684 (dissenting opinion); and Abbate v. United States, 359 U.S. 187, 201, 79 S.Ct. 666, 674, 3 L.Ed.2d 729 (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, 64 S.Ct. 1082, 88 L.Ed. 1408, 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 also on a refusal to exercise this Court's 'supervisory power' over the administration of justice in federal courts, I think that it can no longer be considered good law, in light of this Court's subsequent decision in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. In Elkins, this Court, exercising its supervisory power, did away with the 'silver platter' doctrine and prohibited the use of evidence unconstitutionally seized by state authorities in a federal criminal trial involving the person suffering such a seizure. I believe that a similar supervisory rule of exclusion should follow in a case of the kind now before us, and solely on that basis concur in this judgment.
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, and casts doubt for one reason or another on every American case which does not accord with the result now reached. When the skein is untangled, however, and the line of cases is spread out, two facts clearly emerge:
(1) With two early and somewhat doubtful exceptions, this Court has consistently rejected the proposition that the danger of incrimination in the court of another jurisdiction is a sufficient basis for invoking a privilege against self-incrimination;
(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, 7 L.Ed. 69, 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. The second case is Ballmann v. Fagin, 200 U.S. 186, 26 S.Ct. 212, 50 L.Ed. 433, decided in 1906. The statement that the appellant 'was exonerated from disclosures which would have exposed him to the penalties of the state law,' id., 200 U.S., at 195, 26 S.Ct., at 213, was at best an alternative holding and probably not even that. Ballmann had based his refusal to testify before the Grand Jury solely on the possibility of incrimination under state law, id., 200 U.S., at 193-194, 26 S.Ct., at 213. Nevertheless, before considering the effect of state incrimination at all, the Court pointed out that the facts showed a likelihood of incrimination under federal law. Id., 200 U.S., at 195, 26 S.Ct. at 213. The Court then proceeded to say:
'Not impossibly Ballmann took this aspect of the matter for granted, as one which would be perceived by the court without his disagreeably emphasizing his own fears. But he did cal attention to another less likely to be known. As we have said, he set forth that there were many proceedings on foot against him as party to a 'bucket shop,' and so subject to the criminal law of the state in which the grand jury was sitting. According to United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69, he was exonerated from disclosures which would have exposed him to the penalties of the state law. See Jack v. Kansas (decided this term), 199 U.S. 372, 50 L.Ed. 234, 26 Sup.Ct.Rep. 73. One way or the other we are of opinion that Ballmann could not be required to produce his cash book if he set up that it would tend to criminate him.' Id., 200 U.S., at 195-196, 26 S.Ct., at 213.
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 fe eral 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.
In Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234, decided in 1905, the Court considered a Kansas immunity statute. The witness had refused to testify on the ground that his testimony might incriminate him under federal law. The Court upheld his commitment for contempt over his claim that the immunity granted by the state statute was not 'broad enough,' id., 199 U.S., at 380, 26 S.Ct., at 75, and that his imprisonment therefore violated the Fourteenth Amendment. The Court said:
'We think the legal immunity is in regard to a prosecution in the same jurisdiction, and when that is fully given it is enough.' Id., 199 U.S., at 382, 26 S.Ct., at 76.
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., 199 U.S., at 380, 26 S.Ct., at 75, 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., 199 U.S., at 381 382, 26 S.Ct., at 75-76.
The next case is Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 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:
'The further suggestion that the statute offers no immunity from prosecution in the state courts was also fully considered in Brown v. Walker and held to be no answer. The converse of this was also decided in Jack v. Kansas, 199 U.S. 372, ante, 73, 26 Sup.Ct.Rep. 73, (50 L.Ed. 234), namely, that the fact that an immunity granted to a witness under a state statute would not prevent a prosecution of such witness for a violation of a Federal statute did not invalidate such statute under the 14th Amendment. It was held both by this court and by the supreme court of Kansas that the possibility that information given by the witness might be used under the Federal act did not operate as a reason for permitting the witness to refuse to answer, and that a danger so unsubstantial and remote did not impair the legal immunity. Indeed, if the argument were a sound one it might be carried still further and held to apply not only to state prosecutions within the same jurisdiction, but to prosecutions under the criminal laws of other states to which the witness might have subjected himself. The question has been fully considered in England, and the conclusion reached (by the courts of that country) that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. * * *' 201 U.S., at 68-69, 26 S.Ct., at 376.
In Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560, which did not involve an immunity statute, the Court found it unnecessary to consider the question, extensively argued by the parties, whether 'the Fifth Amendment guarantees immunity from self-incrimination under state statutes * * *,' id., 273 U.S., at 113, 47 S.Ct., at 306; the Court indicated that it did not necessarily regard Hale and Brown, supra, as conclusive of that question, ibid. Cf. United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226. Any doubts on this score, however, were settled in 1931, in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63. The Court there held unmistakably that an individual could not avoid testifying in federal proceedings on the ground that his testimony might incriminate him under state law.
'This court has held that immunity against state prosecution is not essential to the validity of federal statutes declaring that a witness shall not be excused from giving evidence on the ground that it will incriminate him, and also that the lack of state power to give witnesses protection against federal prosecution does not defeat a state immunity statute.
The principle established is 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.' Id., 284 U.S., at 149, 52 S.Ct., at 65.
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, 54 S.Ct. 223, 226. 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, 64 S.Ct., at 1085.
In Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608, the Court held that a federal immunity statute, the language of which 'could be no plainer,' id., 347 U.S., at 181, 74 S.Ct., at 444, prohibited the use in a state criminal trial of testimony given before a Senate Committee. Quite obviously, the remark in Adams that the Fifth Amendment protects a witness 'from the use of self-incriminating testimony he is compelled to give over his objection,' ibid., does not even remotely suggest 'that any testimony elicited under threat of contempt by a government to whom the constitutional privilege against self-incrimination is applicable * * * may not constitutionally be admitted into evidence against him in any criminal trial conducted by a government to whom the privilege is also applicable,' ante, p. 76.
In Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393, 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, 79 S.Ct. 980, 3 L.Ed.2d 1193.
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 rule regulating the conduct of federal authorities in federal proceedings.
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, 378 U.S. 14, 84 S.Ct. 1497.
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:
'The sole-although deeply valuable-purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual gainst the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth.' Knapp v. Schweitzer, supra, 357 U.S., at 380, 78 S.Ct., at 1308.
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, 63 S.Ct. 608, 612-613, 87 L.Ed. 819. 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, 80 S.Ct. 1437.
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. This adjustment between state investigations of local crime and federal prosecutions for federal crime seems particularly desirable in view of the increasing, productive cooperation between federal and state authorities in the prevention of crime. By insulating intergovernmental cooperation from the danger of any encroachment on the federal privilege against self-incrimination, such a rule in the long run will probably make joint programs for crime prevention more effective.
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, 79 S.Ct. 1257, 3 L.Ed.2d 1344.
In reaching its result the Court does not accept the far-reaching and in my view wholly unnecessary constitutional principle that the privilege requires not only complete protection against any use of compelled testimony in any manner in other jurisdictions but also absolute immunity in these jurisdictions from any prosecution pertaining to any of the testimony given. The rule which the Court does not adopt finds only illusory support in a dictum of this Court and, as I shall show, affords no more protection against compelled incrimination than does the rule forbidding federal officials access to statements made in exchange for a grant of state immunity. But such a rule would invalidate the immunity statutes of the 50 States since the States are without authority to confer immunity from federal prosecutions, and would thereby cut deeply and significantly into traditional and important areas of state authority and responsibility in our federal system. It would not only require widespread federal immunization from prosecution in federal investigatory proceedings of persons who violate state criminal laws, regardless of the wishes or needs of local law enforcement officials, but would also deny the States the power to obtain information necessary for state law enforcement and state legislation. That rule, read in conjunction with the holding in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 that an assertion of the privilege is all but conclusive, would mean that testimony in state investigatory proceedings, and in trials also, is on a voluntary basis only. The Federal Government would become the only law enforcement agency with effective power to compel testimony in exchange for immunity from prosecution under federal and state law. These considerations warrant some elaboration.
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 testify in court or before grand juries or agencies. See Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979. Such testimony constitutes one of the Government's primary sources of information. The privilege against self-incrimination, safeguarding a complex of significant values, represents a broad exception to governmental power to compel the testimony of the citizenry. The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158; United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69, and it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used. Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198; Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. Because of the importance of testimony, especially in the discovery of ertain crimes for which evidence would not otherwise be available, and the breadth of the privilege, Congress has enacted over 40 immunity statutes and every State, without exception, has one or more immunity acts pertaining to certain offenses or legislative investigations. Such statutes have for more than a century been resorted to for the investigation of many offenses, chiefly those whose proof and punishment were otherwise impracticable, such as political bribery, extortion, gambling, consumer frauds, liquor violations, commercial larceny, and various forms of racketeering. This Court, in dealing with federal immunity acts, has on numerous occasions characterized such statutes as absolutely essential to the enforcement of various federal regulatory acts. In Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, the case in which the Court first upheld a congressional immunity act over objection that the witness' right to remain silent was inviolate, the Court said: '(If) witnesses standing in Brown's position were at liberty to set up an immunity from testifying, the enforcement of the interstate commerce law or other analogous acts, wherein it is for the interest of both parties to conceal their misdoings, would become impossible.' 161 U.S. 591, at 610, 16 S.Ct. 644, at 652. Again in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, the Court noted the highly significant role played by immunity acts in the enforcement of federal legislation:
'As the combination or conspiracies provided against by the Sherman antitrust act can ordinarily be proved only by the testimony of parties thereto, in the person of their agents or employees, the privilege claimed would practically nullify the whole act of Congress. Of what use would it be for the legislature to declare these combinations unlawful if the judicial power may close the door of access to every available source of information upon the subject?' Id., 201 U.S. at 70, 26 S.Ct., at 377.
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, 76 S.Ct. 497, 506, 100 L.Ed. 511.
These state statutes play at least an equally important role in compelling testimony necessary for enforcement of state criminal laws. After all, the States still bear primary responsibility in this country for the administration of the criminal law; most crimes, particularly those for which immunity acts have proved most useful and necessary, are matters of local concern; federal preemption of areas of crime control traditionally reserved to the States has been relatively unknown and this area has been said to be at the core of the continuing viability of the States in our federal system. See Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. 666, 671, 3 L.Ed.2d 729; Screws v. United States, 325 U.S. 91, 109, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495; United States v. Cruikshank, 92 U.S. 542, 553 554, 23 L.Ed. 588; Unite States v. Ah Hung, 243 F. 762 (D.C.E.D.N.Y.). Cf. 18 U.S.C. § 5001, 18 U.S.C. § 659.
Whenever access to important testimony is barred by possible state prosecution, the State can, at its option, remove the impediment by a grant of immunity; but if the witness is faced with prosecution by the Federal Government, the State is wholly powerless to extend immunity from prosecution under federal law in order to compel the testimony. Almost invariably answers incriminating under state law can be claimed to be incriminating under federal law. Given the extensive sweep of a host of federal statutes, such as the income tax laws, securities regulation, laws regulating use of the mails and other communication media for an illegal purpose, and regulating fraudulent trade practices, and given the very limited discretion, if any, in the trial judge to scrutinize the witness' claim of privilege. Malloy v. Hogan, supra, investigations conducted by the State into matters of corruption and misconduct will obviously be thwarted if immunity from prosecution under federal law was a constitutionally required condition to testimonial compulsion in state proceedings. Wherever the witness, for reasons known only to him, wished not to respond to orderly inquiry, the flow of information to the State would be wholly impeded. Every witness would be free to block vitally important state proceedings.
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, 7 L.Ed. 69; Ballmann v. Fagin, 200 U.S. 186, 26 S.Ct. 212, 50 L.Ed. 433, while in the cases involving refusals to answer after immunity was conferred, the Court indicated that immunity in regard to a prosecution in the jurisdiction conducting the inquiry satisfied the privilege. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644; Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370. Cf. United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. The decision in Ballmann that a witness in a federal grand jury proceeding could not be compelled to make disclosures incriminating under very similar federal and state criminal statutes was announced by members of the same Court and within a very short time of the decisions in Jack and Hale, holding that immunity nder the laws of one sovereign was sufficient. The basis for these latter holdings, as well as Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393, upholding a state contempt conviction for a refusal to answer after a grant of state immunity, was not a niggardly view of the privilege against self-incrimination but 'the historic distribution of power as between Nation and States in our federal system.' 357 U.S. 371, at 375, 78 S.Ct. 1302, at 1305. As the concurring and dissenting members of the Court in Knapp pointed out, the dilemma posed to our federal system by federally incriminating testimony compelled in a state proceeding was not really necessary but for the prior decision in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, which upheld the Federal Government's use of incriminatory testimony compelled in a state proceeding. Although Feldman was questioned, no one suggested in Knapp that the solution to the problem lay in forbidding the State to ask questions incriminating under federal law.
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 absolute protected silence on the part of a state witness would leave no such choice to the States. Only the Federal Government would retain such an option.
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, 18 U.S.C. § 1406. The decision to grant immunity is based upon the importance of the testimony to federal law enforcement interest, a matter within the competence of federal officials to assay. These procedures would create insurmountable obstacles if the requests for approval were to come from innumerable local officials of the 50 States. Obviously federal officials could not properly evaluate the extent of the State's need for the testimony on a case-by-case basis. Further, the scope of the immunity conferred wholly depends on the testimony given, a matter of considerable difficulty to determine after, no less than before, the question is answered, the time when federal approval would be necessary, Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450; Lumber Products Ass'n v. United States, 144 F.2d 546 (C.A.9th Cir.), and a matter whose determination requires intimate familiarity with both the nature and details of the investigation and the background of the witness. Finally, it is very doubtful that Congress would, if it had the power to, authorize one State to confer immunity on persons subject to prosecution under the criminal laws of another State.
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, 12 S.Ct. 195, 35 L.Ed. 1110; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370. 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, 71 S.Ct. 814; Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, if, but only if, after the disclosure the witness will be in greater danger of prosecution and conviction. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; United States v. Gernie, 252 F.2d 664 (C.A.2d Cir.). When federal officials are barred not only from introducing the testimony into evidence in a federal prosecution but also from introducing any evidence derived from such testimony, the disclosure has in no way contributed to the danger or likelihood of a federal prosecution. This approach secures the protections of the privilege against self-incrimination for all defendants without impairing local law-enforcement and investigatory activities. It, of course, forecloses the use of state-compelled testimony in any manner by federal prosecutors, but the privilege in my view commands that the Federal Government should not have the benefit of compelled incriminatory testimony. Both the Federal Government and the witness are in exactly the same position as if the witness had remained silent. And state immunity statutes remain constitutional and state law enforcement agencies viable.
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 increase the possibility of a federal p osecution and alternatively that the defendant may not be able to prove that evidence was intentionally and unlawfully derived from his compelled testimony. These are fanciful considerations, hardly sufficient as a basis for a constitutional adjudication working a substantial reallocation of power between state and national governments.
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, 16 S.Ct. 644, 647-648; Heike v. United States, 227 U.S. 131, 33 S.Ct. 226; Mason v. United States, 244 U.S. 362, 37 S.Ct. 621. First, one might just as well argue that the Constitution requires absolute immunity from prosecution wherever the Government has obtained an inadmissible confession or other evidence through an illegal search and seizure, an illegal wiretap, illegal detention, and coercion. A coerced confession is as revealing of leads as testimony given in exchange for immunity and indeed is excluded in part because it is compelled incrimination in violation of the privilege. Malloy v. Hogan, 378 U.S., at 7-8, 84 S.Ct., at 1493-1494; Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. In all these situations a defendant must establish that testimony or other evidence is a fruit of the unlawfully obtained evidence, Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Wilson v. United States, 218 F.2d 754 (C.A.10th Cir.); Lotto v. United States, 157 F.2d 623 (C.A.8th Cir.), which proposition would seem a fortiori true where the Government has not engaged in illegal or unconstitutional conduct and where the inadmissible testimony is obtained by a government other than the one bringing the prosecution and for a purpose unrelated to the prosecution. Second, there are no real proof problems in this situation. As in the analogous search and seizure and wiretap cases-where the burden of proof is on the Government once the defendant establishes the unlawful search or wiretap, United States v. Coplon, 185 F.2d 629 (C.A.2d Cir.); United States v. Goldstein, 120 F.2d 485, 48 (C.A.2d Cir.), aff'd, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312-once a defendant demonstrates that he has testified in a state proceeding in exchange for immunity to matters related to the federal prosecution, the Government can be put to show that its evidence is not tainted by establishing that it had an independent, legitimate source for the disputed evidence. Since the Government has the relevant information within its control, valid prosecutions need not be sacrified and infringement of the privilege through use of compelled testimony, direct or indirect, need not be tolerated. It is carrying a premise of perjury an judicial incompetence to excess to believe that this procedure poses any hazards to the rights of an accused. Third, greater requirements or difficulties of proof by a defendant inhere in the rule of absolute immunity. When a witness testifies under the auspices of an immunity act, the immunity he gets does not secure him from indictment or conviction. Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821. The witness must plead and prove, as an affirmative defense, that he has received immunity and that the instant prosecution is on account of a matter testified to in exchange for immunity, Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, which may pose considerable difficulties where the relationship between the testimony and the prosecution is not obvious or where the immunity is acquired as a result of testimony before a grand jury or in an in camera administrative proceeding. See Edwards v. United States, 312 U.S. 473, 61 S.Ct. 669, 85 L.Ed. 957; 131 F.2d 198 (C.A.10th Cir.) (retrial), certiorari denied, 317 U.S. 689, 63 S.Ct. 262, 87 L.Ed. 552; United States v. Lumber Products Ass'n, 42 F.Supp. 910 (D.C.N.D.Cal.), rev'd, sub. nom. Ryan v. United States, 128 F.2d 551 (C.A.9th Cir.); Lumber Products Ass'n v. United States (plea of immunity finally upheld after trial), 144 F.2d 546 (C.A.9th Cir.). Cf. Pandolfo v. Biddle, 8 F.2d 142 (C.A.8th Cir).
Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 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, 16 S.Ct. 644; Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608; Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497; Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249. It does not therefore require that absolute immunity from federal prosecution be conferred on a state witness. Counselman, an officer of an interestate railroad, refused to reveal whether he engaged in discriminatory rate practices, a criminal offense, under the Interstate Commerce Act, before a federal grand jury investigating specific violations of that Act. The Court established for the first time that the coverage of the privilege extended to not only a confession of the offense but also disclosures leading to discovery of incriminating evidence, a matter of considerable doubt at the time. See United States v. Brown, 1 Sawy. 531, 536, Fed.Cas.No.14,671; United States v. McCarthy, 18 F. 87, 89 (C.C.S.D.N.Y.); In re Counselman, 44 F. 268 (C.C.N.D.Ill.). It then invalidated the first immunity statute to come before it because '(the statute) could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding * * *. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted.' 142 U.S. 547, at 564, 12 S.Ct. 195, at 198. In a dictum indicating that some immunity statutes are valid, the Court added that 'a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.' Id., 142 U.S., at 586, 12 S.Ct., at 206. Whatever may be the validity of this dictum where the witness is being investigated by a grand jury for the purpose of indictment for a particular offense and where the grand jury proceedings are conducted by the same government attempting to obtain a conviction for the offense-the facts of Counselman-it clearly has no validity, and by its own terms, no applicability, where the inquiry does not concern any federal offense, no less a particular one, and the government seeking the testimony has no purpo e of authority to prosecute for federal crimes.
The Constitution does not require that immunity go so far as to protect against all prosecution 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. State of Miss. ex rel. Knox, 277 U.S. 218, at 223, 48 S.Ct. 451, at 453, 72 L.Ed. 857 (Holmes, J., dissenting). It is precisely this possibility of a prosecution based on untainted evidence that we must recognize. For if it is meaningful to say that the Federal Government may not use compelled testimony to convict a witness of a federal crime, then, of course, the Constitution permits the State to compel such testimony.
'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, 64 S.Ct. 1082, 1088, (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.

## Notes

* ↑ The English rule is not clear. In United States of America v. McRae, L.R., 3 Ch.App. 79 (1867), the case on which the majority primarily relies, the United States came into court as a party and sought to elicit from the defendant answers which would have subjected him to a forfeiture of property under the laws of the United States. Upholding the defendant's refusal to answer, the Lord Chancellor pointed out that the '* * * Plaintiffs calling for an answer are the sovereign power by whose authority and in whose name the proceedings for the forfeiture are instituted, and who have the property to be forfeited within their reach.' Id., at 85. That case, in which one sovereign, as a party in a civil proceeding, attempted to use the judicial process of another sovereign to obtain answers which would subject
* ↑ Compare McNaughton, supra, note 1, at 1305-1306, with Kroner, supra, note 1, at 818. See Hutcheson v. United States, 369 U.S. 599, 608, n. 13, 82 S.Ct. 1005, 1010, 8 L.Ed.2d 137; Feldman v. United States, supra, 322 U.S., at 494, 64 S.Ct., at 1085.
* ↑ In United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226, 76 L.Ed. 210, the Court said that the question whether 'one under examination in a federal tribunal could * * * refuse to answer on account of probable incrimination under state law' had been 'involved, but not decided' in Ballmann.
* ↑ In Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, on which the Court relied in Hale, the Court intimated that a federal immunity statute need not protect a witness from 'a bare possibility that, by his disclosure, he might be subject to the criminal laws of some other sovereignty.' 161 U.S., at 608, 16 S.Ct., at 651.
* ↑ This was the principle underlying the decision in Feldman rather than the so-called 'Feldman reasoning,' ante, p. 74, which, as described by the majority, consists of phrases plucked from separate paragraphs appearing on four different pages of the reported opinion, see Feldman, supra, 322 U.S., at 489-492, 64 S.Ct. at 1083-1084. The Co rt referred to the 'silver platter' doctrine only to illustrate a related principle then applicable in the area of search-and-seizure. See id., 322 U.S., at 492, 64 S.Ct., at 1084.
* ↑ See Adams, supra, 347 U.S., at 180, note 1, 74 S.Ct., at 444.
* ↑ Speculation that federal agents may first have 'gotten wind' of a federal crime by a witness' testimony in state proceedings would not be a basis for barring federal prosecution, unaided by the state testimony. As I understand the rule announced today, albeit resting on premises which I think are unsound, it is a prohibition against the use of state-compelled incriminating evidence or the 'fruits' directly attributable thereto in a federal prosecution.
* ↑ The question whether federally compelled incriminating testimony could be used in a state prosecution is not involved in this case and would, of course, present wholly different considerations.
* ↑ The power and corresponding duty are recognized in the Sixth Amendment's commands that defendants be confronted with witnesses and that they have the right to subpoena witnesses on their own behalf. The duty was recognized by the first Congress in the Judiciary Act of 1789, which made provision for the compulsion of attendance of witnesses in the federal courts. 1 Stat. 73, 88 (1789). See also Lilienthal, The Power of Governmental Agencies to Compel Testimony, 39 Harv.L.Rev. 694-695 (1926); 8 Wigmore, Evidence, §§ 2190-2193 (McNaughton rev., 1961).
* ↑ For a listing of Federal Witness Immunity Acts see Comment, 72 Yale L.J. 1568, 1611-1612; the state acts may be found in 8 Wigmore, Evidence, § 2281, n. 11 (McNaughton rev., 1961).
* ↑ See also Rutkin v. United States, 343 U.S. 130, 139-147, 72 S.Ct. 571, 576-580, 96 L.Ed. 833 (BLACK, J., dissenting).
* ↑ The debates on the bill leading to the statute which granted a congressional committee the power to confer immunity well reveal the concern over immunization from federal prosecution without the express approval of the Attorney General in each case. 99 Cong.Rec. 4737-4740, 8342-8343; H.R.Rep.No.2606, 83d Cong., 2d Sess. (1954), U.S.Code Cong. and Adm.News 1954, p. 3059. See Brownell, Immunity From Prosecution Versus Privilege Against Self-Incrimination, 28 Tul.L.Rev. 1 (1953):
* ↑ Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, allowed the use of testimony compelled in exchange for a grant of state immunity to secure a conviction for a federal offense. I think the Court in Feldman erred in its assumption that an effective exclusionary rule would allow the States to determine on the basis of local policy which offenders should be immune from federal prosecution. The Federal Government can prosecute and convict persons who have received immunity for testimony in a state investigation. But it must do so without the assistance of the compelled incriminatory testimony.
* ↑ As MR. JUSTICE BLACK stated for the Court in Adams v. Maryland, a case dealing with the use of federally compelled testimony in a state proceeding '(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, 74 S.Ct., at 445.
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), Comp.Laws 1948, § 205.517; 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse