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CRS Annotated Constitution

Amendment 5 Table of ContentsPrev | Next
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The Power To Compel Testimony and Disclosure

Immunity.— “Immunity statutes, which have historical roots deep in Anglo–American jurisprudence, are not incompatible [with the values of the self–incrimination clause]. Rather they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these 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.”205 Apparently the first immunity statute was enacted by Parliament in 1710 206 and it was widely copied in the colonies. The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from prosecution for any matter “touching which” he had testified.207

Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional witness,208 the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock209 that an analogous limited-immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was ambiguous with regard to its grounds because it identified two faults in the statute: it did not proscribe “derivative” evidence210 and it only prohibited future use of the compelled testimony.211 The latter language accentuated a division between adherents of “transactional” immunity and of “use” immunity which has continued to the present.212 In any event, following Counselman, Congress enacted a statute which conferred transactional immunity as the price for being able to compel testimony,213 and the Court sustained this law in a five–to–four decision.214

“The 1893 statute has become part of our constitutional fabric and has been included ‘in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.”’215 So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal immunity statute.216 Because all but one of the immunity acts passed after Brown v. Walker were transactional immunity statutes,217 the question of the constitutional sufficiency of use im-munity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of grant.218 But beginning in 1964, when it applied the self–incrimination clause to the States, the Court was faced with the problem which arose because a State could grant immunity only in its own courts and not in the courts of another State or of the United States.219 On the other hand, to foreclose the States from compelling testimony because they could not immunize a witness in a subsequent “foreign” prosecution would severely limit state law enforcement efforts. Therefore, 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,” and thus formulated a use restriction to that effect.220 Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indicated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was “in principle an attractive and apparently practical resolution of the difficult problem before us,” citing Murphy with apparent approval.221

Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use–immunity restriction only.222 Soon tested, this statute was sustained in Kastigar v. United-States.223 “[P]rotection coextensive with the privilege is the degree of protection which the Constitution requires,” wrote Justice Powell for the Court, “and is all that the Constitution requires. . . .”224 “Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being ‘forced to give testimony leading to the infliction of “penalties affixed to . . . criminal acts.”’ Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.”225

Required Records Doctrine.— While the privilege is applicable to one’s papers and effects,226 it does not extend to corporate persons, hence corporate records, as has been noted, are subject to compelled production.227 In fact, however, the Court has greatly narrowed the protection afforded in this area to natural persons by developing the “required records” doctrine. That is, it has held “that the privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the en-forcement of restrictions validly established.”’228 This exception developed out of, as Justice Frankfurter showed in dissent, the rule that documents which are part of the official records of government are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate the regulation of the business being conducted, so the reasoning goes, the records become public at least to the degree that government could always scrutinize them without hindrance from the record–keeper. “If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment—to say nothing of State and local legislation—has record–keeping provisions. In addition to record– keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record–keeping and reporting requirements. Unquestionably they are enormous in volume.”229

“It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the recordkeeper himself.”230 But the only limit which the Court suggested in Shapiro was that there must be “a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator.”231 That there are limits established by the self–incrimination clause itself rather than by a subject matter jurisdiction test is evident in the Court’s consideration of reporting and disclosure requirements implicating but not directly involving the required–records doctrine.


Footnotes

205 Kastigar v. United States, 406 U.S. 441, 445–46 (1972) . It has been held that the Fifth Amendment itself 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) .
206 9 Anne, c. 14, 3–4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972) .
207 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress.
208 Ch. 11, 12 Stat. 333 (1862).
209 142 U.S. 547 (1892) . The statute struck down was ch. 13, 15 Stat. 37 (1868).
210 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892) . And see id. at 586.
211 Id. at 585–86.
212 “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 were subsequently prosecuted on independent evidence for the offense.
213 Ch. 83, 27 Stat. 443 (1893).
214 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 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, since 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.
215 Ullmann v. United States, 350 U.S. 422, 438 (1956) , (quoting Shapiro v. United States, 335 U.S. 1, 6 (1948) ).
216 “[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.” Id. at 438–39. The internal quotation is from Boyd v. United States, 116 U.S. 616, 634 (1886) .
217 Kastigar v. United States, 406 U.S. 441, 457–58 (1972) ; Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. Sec. 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) .
218 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 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.
219 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, of course, 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) .
220 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.
221 Marchetti v. United States, 390 U.S. 39, 58 (1968) .
222 Organized Crime Control Act of 1970, Pub. L. No. 91–452, Sec. 201(a), 84 Stat. 922 , 18 U.S.C. §§ 6002 –03. 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) .
223 406 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) .
224 Kastigar v. United States, 406 U.S. 441, 459 (1972) .

Supplement: [P. 1315, add to n.224:]

See also United States v. Hubbell, 120 S. Ct. 2037 (2000) (because the statute protects against derivative use of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena).

225 Id. at 453. Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use ban was constitutionally adequate. Id. at 462, 467. Justices Brennan and Rehnquist did not participate but Justice Brennan’s views that transactional immunity was required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dissenting). See also New Jersey v. Portash, 440 U.S. 451 (1979) (prosecution use of defendant’s immunized testimony to impeach him at trial violates self–incrimination clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of perjury. United States v. Apfelbaum, 445 U.S. 115 (1980) . See also United States v. Wong, 431 U.S. 174 (1977) ; United States v. Mandujano, 425 U.S. 564 (1976) . Because use immunity is limited, a witness granted use immunity for grand jury testimony may validly invoke his Fifth Amendment privilege in a civil deposition proceeding when asked whether he had “so testified” previously, the deposition testimony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) .
226 Boyd v. United States, 116 U.S. 616 (1886) . Supra, p.1225. But see Fisher v. United States, 425 U.S. 391 (1976) .
227 Supra, p.1305.
228 Shapiro v. United States, 335 U.S. 1, 33 (1948) , (quoting Davis v. United States, 328 U.S. 582, 589–90 (1946) , (quoting in turn Wilson v. United States, 221 U.S. 361, 380 (1911) )). Wilson is the source of the required–records doctrine in its dicta, the holding in the case being the familiar one that a corporate officer cannot claim the privilege against self–incrimination to refuse to surrender corporate records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913) . Davis was a search and seizure case and dealt with gasoline ration coupons which were government property even though in private possession. See Shapiro, supra, 36, 56–70 (Justice Frankfurter dissenting).
229 Id. at 51.
230 Id. at 32.
231 Id.
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