In re Impounded: When Will the Right Against Self-Incrimination Protect Witnesses from Foreign Prosecution?

I. INTRODUCTION Though many think that their constitutional rights are inviolate, the Supreme Court has held in at least one case that certain rights do not apply to United States citizens on United States soil. In 1998, the Supreme Court decided that a man who immigrated to the United States nearly forty years ago should have no constitutional protection under the Fifth Amendment right to silence because he did not face criminal prosecution in this country. Because he could not invoke his right to silence, the man was required to testify about his activities during World War II in an extradition hearing. Should the constitutionally guaranteed right against self-incrimination protect United States citizens from foreign prosecution? In United States v. Balsys,1 the Supreme Court concluded that it should not. While some people applaud the Balsys decision for its application to seventy- and eighty-year-old suspected (but not convicted) Nazi war criminals,2 the decision also applies to ordinary American citizens. Because of the Balsys decision, federal or state governments can force any citizen to provide testimony in a United States court that could be used against him or her in a foreign jurisdiction. Statutes providing for immunity allow the government to force a witness to testify by promising that the government will not use a witness's words against him or her in any future prosecution. Immunity, however, only bans the government from using the witness's testimony in criminal prosecution. Mr. Balsys faced the possibility, however, that his testimony, forced by a grant of immunity, could still be used against him in a foreign criminal prosecution. With the current trend toward increased cooperation between nations in law enforcement and criminal prosecution, knowingly allowing the use of, or actively sharing, immunized witness testimony with foreign nations who plan on prosecuting the witness in a criminal court makes a mockery of the Fifth Amendment. The likelihood of the Balsys decision remaining the final word on this issue is very slim. In a recent case, In re Impounded,3 immunized witnesses before a New Jersey grand jury claimed that the Balsys decision created a test for recognizing when the Fifth Amendment right against self-incrimination could be invoked for fear of criminal prosecution in a foreign country. While the New Jersey court could immunize the witnesses from prosecution in the United States, granting such immunity would not have protected the witnesses from prosecution in a foreign country. The Court of Appeals for the Third Circuit held that Balsys did not create a test, or, even if Balsys did create a test, the witnesses did not prove all of the test's necessary elements. While the facts underlying In re Impounded did not support the witnesses' argument for an exception to Balsys, an exception should be found to protect witnesses who are forced to testify, have a real fear of foreign prosecution, and whose testimony is made available to foreign authorities as a result of actions by the United States government. The rights contained in the Constitution must be protected to guarantee the purposes for which they were given-to protect individuals from governmental abuses of power. This Note describes the Balsys exception test, examines the elements of the test to determine when the exception applies, and suggests some refinements. Part II of this Note will examine the historical background that serves as a foundation to the Balsys decision, including early Supreme Court cases discussing the applicability of Fifth Amendment rights in state and federal courts. Part III will examine the Third Circuit decision in In re Impounded and the arguments made by that court against the application of the Balsys exception. Part IV will argue that the Supreme Court did, in fact, create an exception to the general rule that witnesses fearing foreign prosecution cannot invoke Fifth Amendment privileges in its Balsys decision and will suggest the appropriate factors to be considered in future attempts to invoke the Balsys exception. …