Kastigar v. United States/Dissent Douglas

[p462] MR. JUSTICE DOUGLAS, dissenting.

The Self-Incrimination Clause says: "No person... shall be compelled in any criminal case to be a witness against himself." I see no answer to the proposition that he is such a witness when only "use" immunity is granted.

My views on the question of the scope of immunity that is necessary to force a witness to give up his [p463] guarantee against self-incrimination contained in the Fifth Amendment are so well known, see Ullmann v. United States, 350 U.S. 422, 440 (dissenting), and Piccirillo v. New York, 400 U.S. 548, 549 (dissenting), that I need not write at length.

In Counselman v. Hitchcock, 142 U.S. 547, 586, the Court adopted the transactional immunity test: "In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates." Id., at 586. In Brown v. Waller, 161 U.S. 591, a case involving another federal prosecution, the immunity statute provided that the witness would be protected "on account of any transaction... concerning which he may testify." Id., at 594. The Court held that the immunity offered was coterminous with the privilege and that the witness could therefore be compelled to testify, a ruling that made "transactional immunity" part of the fabric of our constitutional law. Ullmann v. United States, supra, at 438.

This Court, however, apparently believes that Counselman and its progeny were overruled sub silentio in Murphy v. Waterfront Comm'n, 378 U.S. 52. Murphy involved state witnesses, granted transactional immunity under state law, who refused to testify for fear of subsequent federal prosecution. We held that the testimony in question could be compelled, but that the Federal Government would be barred from using any of the testimony, or its fruits, in a subsequent federal prosecution.

Murphy overruled, not Counselman, but Feldman v. United States, 322 U.S. 487, which had held "that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction." Murphy v. Waterfront Comm'n, supra, at 77. But Counselman, [p464] as the Murphy Court recognized, "said nothing about the problem of incrimination under the law of another sovereign." Id., at 72. That problem is one of federalism, as to require transactional immunity between jurisdictions might

"'deprive a state of the right to prosecute a violation of its criminal law on the basis of another state's grant of immunity [a result which] would be gravely in derogation of its sovereignty and obstructive of its administration of justice.' United States ex rel. Catena v. Elias, 449 F. 2d 40, 44 (CA3 1971)."

Moreover, as MR. JUSTICE BRENNAN has pointed out, the threat of future prosecution

"'substantial when a single jurisdiction both compels incriminating testimony and brings a later prosecution, may fade when the jurisdiction bringing the prosecution differs from the jurisdiction that compelled the testimony. Concern over informal and undetected exchange of information is also correspondingly less when two different jurisdictions are involved.' Piccirillo v. New York, 400 U.S., at 568 (dissenting)."

None of these factors apply when the threat of prosecution is from the jurisdiction seeking to compel the testimony, which is the situation we faced in Counselman, and which we face today. The irrelevance of Murphy to such a situation was made clear in Albertson v. Subversive Activities Control Board, 382 U.S. 70, in which the Court struck down an immunity statute because it failed to measure up to the standards set forth in Counselman. Inasmuch as no interjurisdictional problems presented themselves, Murphy was not even cited. That is further proof that Murphy had not thought significantly to [p465] undercut Counselman. See Stevens v. Marks, 383 U.S. 234, 244-245; id., at 249-250 (Harlan, J., concurring and dissenting); Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup. Ct. Rev. 103, 164.

If, as some have thought, the Bill of Rights contained only "counsels of moderation" from which courts and legislatures could deviate according to their conscience or discretion, then today's contraction of the Self-Incrimination Clause of the Fifth Amendment would be understandable. But that has not been true, starting with Chief Justice Marshall's opinion in United States v. Burr, [p466] 25 F. Cas. 38 (No. 14692e) (CC Va.), where he ruled that the reach of the Fifth Amendment was so broad as to make the privilege applicable when there was a mere possibility of a criminal charge being made.

The Court said in Hale v. Henkel, 201 U.S. 43, 67, that "if the criminality has already been taken away, the Amendment ceases to apply." In other words, the immunity granted is adequate if it operates as a complete pardon for the offense. Brown v. Walker, 161 U.S., at 595. That is the true measure of the Self-Incrimination Clause. As MR. JUSTICE BRENNAN has stated: "[U]se immunity literally misses half the point of the privilege, for it permits the compulsion without removing the criminality." Piccirillo v. New York, supra, at 567 (dissenting).

As MR. JUSTICE BRENNAN has also said:

"'Transactional immunity... provides the individual with an assurance that he is not testifying about matters for which he may later be prosecuted. No question arises of tracing the use or non-use of information gleaned from the witness' compelled testimony. The sole question presented to a court is whether the subsequent prosecution is related to the substance of the compelled testimony. Both witness and government know precisely where they stand. Respect for law is furthered when the individual knows his position and is not left suspicious that a later prosecution was actually the fruit of his compelled testimony.' 400 U.S., at 568-569 (dissenting)."

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 what testimony may [p467] be pursued and used to convict the witness. 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.

I would adhere to Counselman v. Hitchcock and hold that this attempt to dilute the Self-Incrimination Clause is unconstitutional.