OCTOBER TERM, 1997
Syllabus
UNITED STATES
v. BALSYS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 97-873. Argued April 20, 1998-Decided June 25,1998
When the Office of Special Investigations of the Department of
Justice's Criminal Division (OSI) subpoenaed respondent Balsys, a
resident alien, to testify about his wartime activities between
1940 and 1944 and his immigration to the United States, he claimed
the Fifth Amendment privilege against self-incrimination, based on
his fear of prosecution by a foreign nation. The Federal District
Court granted OSI's petition to enforce the subpoena, but the
Second Circuit vacated the order, holding that a witness with a
real and substantial fear of prosecution by a foreign country may
assert the privilege to avoid giving testimony in a domestic
proceeding, even if the witness has no valid fear of a criminal
prosecution in this country.
Held: Concern with foreign prosecution is beyond the
scope of the SelfIncrimination Clause. Pp. 671-700.
(a) As a resident alien, Balsys is a "person" who, under that
Clause, cannot "be compelled in any criminal case to be a witness
against himself." See
Kwong Hai Ghew v.
Golding,
344 U. S. 590,
596. However, the question here is whether a criminal prosecution
by a foreign government not subject to this country's
constitutional guarantees presents a "criminal case" for purposes
of the privilege. Pp. 671-672.
(b) Balsys initially relies on the textual contrast between the
Sixth Amendment, which clearly applies only to domestic criminal
proceedings, and the Fifth, with its broader reference to "any
criminal case," to argue that "any criminal case" means exactly
that, regardless of the prosecuting authority. But the argument
overlooks the cardinal rule to construe provisions in context. See
King v.
St. Vincent's Hospital, 502 U. S. 215, 221.
Because none of the other provisions of the Fifth Amendment is
implicated except by action of the government that it binds, it
would have been strange to choose such associates for a Clause
meant to take a broader view. Further, a more modest understanding,
that "any criminal case" distinguishes the Fifth Amendment's
SelfIncrimination Clause from its Clause limiting grand jury
indictments to "capital, or otherwise infamous crime[s]," provides
an explanation for the text of the privilege. Indeed, there is no
known clear common-law precedent or practice, contemporaneous with
the framing, for looking to
667
the possibility offoreign prosecution as a premise for claiming
the privilege. Pp. 672-674.
(c) In the precursors of this case, the Court concluded that
prosecution in a state jurisdiction not bound by the
Self-Incrimination Clause is beyond the purview of the privilege.
United States v.
Murdock, 284 U. S. 141.
United
States v.
Saline Bank of Va., 1 Pet. 100, and
Ballmann v.
Fagin, 200 U. S. 186,
distinguished. The Court's precedent turned away from this
proposition once, in
Malloy v.
Hogan, 378 U. S. 1, 3, where it
applied the Fourteenth Amendment due process incorporation to the
Self-Incrimination Clause, so as to bind the States as well as the
National Government by its terms. It immediately said, in
Murphy v.
Waterfront Comm'n of N. Y.
Harbor,
378 U. S. 52, 57,
that
Malloy necessitated a reconsideration of
Murdock's rule. After
Malloy, the Fifth Amendment
limitation was no longer framed for one jurisdiction alone, each
jurisdiction having instead become subject to the same privilege
claim flowing from the same source. Since fear of prosecution in
the one jurisdiction now implicated the very privilege binding upon
the other, the
Murphy opinion sensibly recognized that if a
witness could not assert the privilege in such circumstances, the
witness could be "whipsawed" into incriminating himself under both
state and federal law, even though the privilege was applicable to
each. Such whipsawing is possible because the privilege against
self-incrimination can be exchanged by the government for an
immunity to prosecutorial use of any compelled inculpatory
testimony.
Kastigar v.
United States, 406 U. S. 441,
448-449. Such an exchange by the government is permissible only
when it provides immunity as broad as the privilege. After
Malloy had held the privilege binding on the state
jurisdictions as well as the National Government, it would have
been intolerable to allow a prosecutor in one or the other
jurisdiction to eliminate the privilege by offering immunity less
complete than the privilege's dual jurisdictional reach. To the
extent that the
Murphy Court undercut
Murdock's
rationale on historical grounds, its reasoning that English cases
supported a more expansive reading of the Clause is flawed and
cannot be accepted now. Pp.674-690.
(d)
Murphy discusses a catalog of "Policies of the
Privilege," which could suggest a concern broad enough to encompass
foreign prosecutions. However, the adoption of such a revised
theory would rest on
Murphy's treatment of English cases,
which has been rejected as an indication of the Clause's meaning.
Moreover, although
Murphy catalogs aspirations furthered by
the Clause, its discussion does not weigh the host of competing
policy concerns that would be raised in a legitimate
reconsideration of the Clause's scope. Contrary to Balsys's
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Syllabus
contention, general personal testimonial integrity or privacy is
not a reliable guide to the Clause's scope of protection. Fifth
Amendment tradition offers, in practice, a conditional protection
of testimonial privacy. Since the judiciary could not recognize
fear of foreign prosecution and at the same time preserve the
Government's existing rights to seek testimony in exchange for
immunity (because domestic courts could not enforce the immunity
abroad), extending the privilege would change the balance of
private and governmental interests that has been accepted for as
long as there has been Fifth Amendment doctrine. Balsys also argues
that
Murphy's policy catalog supports application of the
privilege in order to prevent the Government from overreaching to
facilitate foreign criminal prosecutions in a spirit of
"cooperative internationalism."
Murphy recognized
"cooperative federalism"-the teamwork of state and national
officials to fight interstate crime-but only to underscore the
significance of the Court's holding that a federal court could no
longer ignore fear of state prosecution when ruling on a privilege
claim. Since in this case there is no counterpart to
Malloy,
imposing the Fifth Amendment beyond the National Government, there
is no premise in
Murphy for appealing to "cooperative
internationalism" by analogy to "cooperative federalism." The
analogy must, instead, be to the
pre-Murphy era when the
States were not bound by the privilege. Even if "cooperative
federalism" and "cooperative internationalism" did support
expanding the privilege's scope, Balsys has not shown that the
likely costs and benefits justify such expansion. Cooperative
conduct between the United States and foreign nations may one day
develop to a point at which fear of foreign prosecution could be
recognized under the Clause as traditionally understood, but Balsys
has presented no interest rising to such a level of cooperative
prosecution. Pp. 690-700.
119 F.3d
122, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, and KENNEDY, JJ., joined,
and in which SCALIA and THOMAS, JJ., joined as to Parts I, II, and
III. STEVENS, J., filed a concurring opinion,
post, p. 700.
GINSBURG, J., filed a dissenting opinion,
post, p. 701.
BREYER, J., filed a dissenting opinion, in which GINSBURG, J.,
joined,
post, p. 702.
Deputy Solicitor General Dreeben argued the cause for the United
States. With him on the briefs were Solicitor General Waxman,
Acting Assistant Attorney General Keeney, Barbara McDowell, and
Joseph C. Wyderko.
669
Ivars Berzins argued the cause and filed a brief for
respondent. *
JUSTICE SOUTER delivered the opinion of the Court.t
By administrative subpoena, the Office of Special Investigations
of the Criminal Division of the United States Department of Justice
(OSI) sought testimony from the respondent, Aloyzas Balsys, about
his wartime activities between 1940 and 1944 and his immigration to
the United States in 1961. Balsys declined to answer such
questions, claiming the Fifth Amendment privilege against
self-incrimination, based on his fear of prosecution by a foreign
nation. We hold that concern with foreign prosecution is beyond the
scope of the Self- Incrimination Clause.
I
Respondent Aloyzas Balsys is a resident alien living in
Woodhaven, New York, having obtained admission to this country in
1961 under the Immigration and Nationality Act, 8 U. S. C. § 1201,
on an immigrant visa and alien registration issued at the American
Consulate in Liverpool. In his application, he said that he had
served in the Lithuanian army between 1934 and 1940, and had lived
in hiding in Plateliai, Lithuania, between 1940 and 1944. Balsys
swore that the information was true, and signed a statement of
understanding that if his application contained any false
information or materially misleading statements, or concealed any
material fact, he would be subject to criminal prosecution and
deportation.
*Elizabeth Holtzman and
Sanford Hausler filed a
brief for the World Jewish Congress et al. as
amici curiae
urging reversal.
John D. Cline, Barbara E. Bergman, and
John L.
Pollok filed a brief for the National Association of Criminal
Defense Lawyers et al. as
amici curiae urging
affirmance.
tJUSTICE SCALIA and JUSTICE THOMAS join only Parts I, II, and
III of this opinion.
670
OSI, which was created to institute denaturalization and
deportation proceedings against suspected Nazi war criminals, is
now investigating whether, contrary to his representations, Balsys
participated in Nazi persecution during World War II. Such activity
would subject him to deportation for persecuting persons because of
their race, religion, national origin, or political opinion under
§§ 1182(a)(3)(E) and 1251(a)(4)(D), as well as for lying on his
visa application under §§ 1182(a)(6)(C)(i) and 1251(a)(1)(A).
When OSI issued a subpoena requiring Balsys to testify at a
deposition, he appeared and gave his name and address, but he
refused to answer any other questions, such as those directed to
his wartime activities in Europe between 19401945 and his
immigration to the United States in 1961. In response to all such
questions, Balsys invoked the Fifth Amendment privilege against
compelled self-incrimination, claiming that his answers could
subject him to criminal prosecution. He did not contend that he
would incriminate himself under domestic law,l but claimed the
privilege because his responses could subject him to criminal
prosecution by Lithuania, Israel, and Germany.
OSI responded with a petition in Federal District Court to
enforce the subpoena under § 1225(a). Although the District Court
found that if Balsys were to provide the information requested, he
would face a real and substantial danger of prosecution by
Lithuania and Israel (but not by Germany), it granted OS1's
enforcement petition and ordered Balsys to testify, treating the
Fifth Amendment as inapplicable to a claim of incrimination solely
under foreign law. 918 F. Supp. 588 (EDNY 1996). Balsys appealed,
and the Court of Appeals for the Second Circuit vacated the
District Court's order, holding that a witness with a real and
substantial fear of prosecution by a foreign country may assert the
Fifth Amendment privilege to avoid giving testimony in a domes-
1 The Government advises us that the statute of limitation bars
criminal prosecution for any misrepresentation. Tr. of Oral Arg.
4.
671
tic proceeding, even if the witness has no valid fear of a
criminal prosecution in this country.
119 F.3d
122 (1997). We granted certiorari, 522 U. S. 1072 (1998), to
resolve a conflict among the Circuits on this issue 2 and now
reverse.
II
The Self-Incrimination Clause of the Fifth Amendment provides
that "[n]o person ... shall be compelled in any criminal case to be
a witness against himself." U. S. Const., Arndt. 5. Resident aliens
such as Balsys are considered "persons" for purposes of the Fifth
Amendment and are entitled to the same protections under the Clause
as citizens. See
Kwong Hai Ghew v.
Golding, 344 U. S. 590, 596
(1953). The parties do not dispute that the Government seeks to
"compel" testimony from Balsys that would make him "a witness
against himself." The question is whether there is a risk that
Balsys's testimony will be used in a proceeding that is a "criminal
case."
Balsys agrees that the risk that his testimony might subject him
to deportation is not a sufficient ground for asserting the
privilege, given the civil character of a deportation proceeding.
See
INS v.
Lopez-Mendoza, 468 U. S. 1032,
1038-1039 (1984). If, however, Balsys could demonstrate
2 See
United States v.
Gecas, 120 F.3d
1419 (CAll 1997) (en bane) (holding that the privilege cannot
be invoked based on fear of prosecution abroad);
United
States v.
(Under Seal), 794 F.2d
920 (CA4) (same), cert. denied
sub nom. Araneta v.
United States, 479 U. S. 924 (1986);
In re Parker,
411 F.2d
1067 (CAW 1969) (same), vacated as moot,
397 U. S. 96 (1970).
We have granted certiorari in cases raising this question twice
before but did not reach its merits in either case. See
Zicarelli v.
New Jersey Comm'n of Investigation,
406 U. S. 472
(1972) (finding that because the petitioner did not face a "real
and substantial" risk of foreign prosecution, it was unnecessary to
decide whether the privilege can be asserted based on fear of
foreign prosecution);
Parker v.
United States,
397 U. S. 96
(1970)
(per curiam) (vacating and remanding with
instructions to dismiss as moot).
672
that any testimony he might give in the deportation
investigation could be used in a criminal proceeding against him
brought by the Government of either the United States or one of the
States, he would be entitled to invoke the privilege. It "can be
asserted in any proceeding, civil or criminal, administrative or
judicial, investigatory or adjudicatory," in which the witness
reasonably believes that the information sought, or discoverable as
a result of his testimony, could be used in a subsequent state or
federal criminal proceeding.
Kastigar v.
United
States, 406 U. S.
441, 444-445 (1972); see also
McCarthy v.
Arndstein, 266
U. S. 34, 40 (1924) (the privilege "applies alike to civil and
criminal proceedings, wherever the answer might tend to subject to
criminal responsibility him who gives it"). But Balsys makes no
such claim, contending rather that his entitlement to invoke the
privilege arises because of a real and substantial fear that his
testimony could be used against him by Lithuania or Israel in a
criminal prosecution. The reasonableness of his fear is not
challenged by the Government, and we thus squarely face the
question whether a criminal prosecution by a foreign government not
subject to our constitutional guarantees presents a "criminal case"
for purposes of the privilege against self-incrimination.
III
Balsys relies in the first instance on the textual contrast
between the Sixth Amendment, which clearly applies only to domestic
criminal proceedings, and the Compelled SelfIncrimination Clause,
with its facially broader reference to "any criminal case." The
same point is developed by Balsys's
amici,3 who argue that
"any criminal case" means exactly that, regardless of the
prosecuting authority. According to the argument, the Framers' use
of the adjective "any" precludes recognition of the distinction
raised by the
3 See Brief for National Association of Criminal Defense Lawyers
et al. as
Amici Curiae 5.
673
Government, between prosecution by a jurisdiction that is itself
bound to recognize the privilege and prosecution by a foreign
jurisdiction that is not. But the argument overlooks the cardinal
rule to construe provisions in context. See
King v.
St.
Vincent's Hospital, 502 U. S. 215, 221
(1991). In the Fifth Amendment context, the Clause in question
occurs in the company of guarantees of grand jury proceedings,
defense against double jeopardy, due process, and compensation for
property taking. Because none of these provisions is implicated
except by action of the government that it binds, it would have
been strange to choose such associates for a Clause meant to take a
broader view, and it would be strange to find such a sweep in the
Clause now. See
Wharton v.
Wise, 153 U. S. 155, 169-170
(1894)
(noscitur a sociis); see also
Gustafson v.
Alloyd Co., 513 U. S. 561, 575 (1995)
(same). The oddity of such a reading would be especially stark if
the expansive language in question is open to another reasonable
interpretation, as we think it is. Because the Fifth Amendment
opens by requiring a grand jury indictment or presentment "for a
capital, or otherwise infamous crime,"4 the phrase beginning with
"any" in the subsequent Self- Incrimination Clause may sensibly be
read as making it clear that the privilege it provides is not so
categorically limited. It is plausible to suppose the adjective was
inserted only for that purpose, not as taking the further step of
defining the relevant prosecutorial jurisdiction internationally.
We therefore take this to be the fair reading of the adjective
"any," and we read the Clause contextually as
4 As a whole, the Amendment reads as follows: "No person shall
be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case to be
a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation."
674
apparently providing a witness with the right against compelled
self-incrimination when reasonably fearing prosecution by the
government whose power the Clause limits, but not otherwise. Since
there is no helpful legislative history,5 and because there was no
different common law practice at the time of the framing, see Part
III-C,
infra; cf.
Counselman v.
Hitchcock,
142 U. S. 547,
563-564 (1892) (listing a sample of cases, including preframing
cases, in which the privilege was asserted, none of which involve
fear of foreign prosecution), there is no reason to disregard the
contextual reading. This Court's precedent has indeed adopted that
so-called same-sovereign interpretation.
A
The currently received understanding of the Bill of Rights as
instituted "to curtail and restrict the general powers granted to
the Executive, Legislative, and Judicial Branches" of the National
Government defined in the original constitutional articles,
New
York Times Co. v.
United
5 See
Gecas, 120 F. 3d, at 1435 (noting that the Clause
has "virtually no legislative history"); 5 The Founders'
Constitution 262 (P. Kurland & R. Lerner eds. 1987) (indicating
that the Clause as originally drafted and introduced in the First
Congress lacked the phrase "any criminal case," which was added at
the behest of Representative Lawrence on the ground that the Clause
would otherwise be "in some degree contrary to laws passed").
In recent years, scholarly attention has refined our knowledge
of the previous manifestations of the privilege against
self-incrimination, the present culmination of such scholarship
being R. Helmholz et al., The Privilege Against Self-Incrimination
(1997). What we know of the circumstances surrounding the adoption
of the Fifth Amendment, however, gives no indication that the
Framers had any sense of a privilege more comprehensive than common
law practice then revealed. See Moglen, Taking the Fifth:
Reconsidering the Origins of the Constitutional Privilege Against
Self-Incrimination, 92 Mich. L. Rev. 1086, 1123 (1994) ("[T]he
legislative history of the Fifth Amendment adds little to our
understanding of the history of the privilege"). As to the common
law practice, see Part III-C,
infra.
675
States, 403
U. S. 713, 716 (1971)
(per curiam) (Black, J.,
concurring) (emphasis deleted), was expressed early on in Chief
Justice Marshall's opinion for the Court in the leading case of
Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet.
243, 247 (1833): the Constitution's "limitations on power ... are
naturally, and, we think, necessarily applicable to the government
created by the instrument," and not to "distinct [state]
governments, framed by different persons and for different
purposes."
To be sure, it would have been logically possible to decide (as
in
Barron) that the "distinct [state] governments ... framed
... for different purposes" were beyond the ambit of the Fifth
Amendment, and at the same time to hold that the self-incrimination
privilege, good against the National Government, was implicated by
fear of prosecution in another jurisdiction. But after
Barron and before the era of Fourteenth Amendment
incorporation, that would have been an unlikely doctrinal
combination, and no such improbable development occurred.
The precursors of to day's case were those raising the question
of the significance for the federal privilege of possible use of
testimony in state prosecution. Only a handful of early cases even
touched on the problem. In
Brown v.
Walker, 161 U. S. 591 (1896), a
witness raised the issue, claiming the privilege in a federal
proceeding based on his fear of prosecution by a State, but we
found that a statute under which immunity from federal prosecution
had been conferred provided for immunity from state prosecution as
well, obviating any need to reach the issue raised.
Id., at
606-608. In
Jack v.
Kansas, 199 U. S. 372 (1905), a
Fourteenth Amendment case, we affirmed a sentence for contempt
imposed on a witness in a state proceeding who had received
immunity from state prosecution but refused to answer questions
based on a fear that they would subject him to federal prosecution.
Although there was no reasonable fear of a prosecution by the
National Government in that
676
case, we addressed the question whether a self-incrimination
privilege could be invoked in the one jurisdiction based on fear of
prosecution by the other, saying that "[w]e think the legal
immunity is in regard to a prosecution in the same jurisdiction,
and when that is fully given it is enough."
Id., at 382. A
year later, in the course of considering whether a federal witness,
immunized from federal prosecution, could invoke the privilege
based on fear of state prosecution, we adopted the general
proposition that "the possibility that information given by the
witness might be used" by the other government is, as a matter of
law, "a danger so unsubstantial and remote" that it fails to
trigger the right to invoke the privilege.
Hale v.
Henkel, 201 U.
S. 43, 69 (1906).
"[I]f 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 [is] that the only danger to
be considered is one arising within the same jurisdiction and under
the same sovereignty. Queen v. Boyes, 1 B. & S.
311[, 121 Eng. Rep. 730]; King of the Two Sicilies v.
Willcox, 7 State Trials (N. S.), 1049, 1068; State v.
March, 1 Jones (N. Car.), 526; State v.
Thomas, 98 N. Car. 599." Ibid.
A holding to this effect came when
United States v.
Murdock, 284
U. S. 141 (1931), "definitely settled" the question whether in
a federal proceeding the privilege applied on account of fear of
state prosecution, concluding "that one under examination in a
federal tribunal could not refuse to answer on account of probable
incrimination under state law."
United States v.
Murdock, 290
U. S. 389, 396 (1933).
"The English rule of evidence against compulsory
selfincrimination, on which historically that contained in
677
the Fifth Amendment rests, does not protect witnesses against
disclosing offenses in violation of the laws of another country.
King of the Two Sicilies v. Willcox, 7 State Trials
(N. S.) 1049, 1068. Queen v. Boyes, 1 B. & S., at
330[, 121 Eng. Rep., at 738]. 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. Counselman v.
Hitchcock, 142
U. S. 547. Brown v. Walker, 161 U. S. 591, 606.
Jack v. Kansas, 199 U. S. 372, 381.
Hale v. Henkel, 201 U. S. 43, 68. As
appellee at the hearing did not invoke protection against federal
prosecution, his plea is without merit and the government's
demurrer should have been sustained." Murdock, 284 U. S., at
149.
Murdock's resolution of the question received a
subsequent complement when we affirmed again that a State could
compel a witness to give testimony that might incriminate him under
federal law, see
Knapp v.
Schweitzer, 357 U. S. 371 (1958),
overruled by
Murphy v.
Waterfront Comm'n of N.
Y.
Harbor, 378 U. S.
52 (1964), testimony that we had previously held to be
admissible into evidence in the federal courts, see
Feldman
v.
United States, 322 U. S. 487 (1944),
overruled by
Murphy, supra, at 80.
B
It has been suggested here that our precedent addressing fear of
prosecution by a government other than the compelling authority
fails to reflect the
Murdock rule uniformly.
678
In 1927 (prior to our decision in
Murdock), in a case
involving a request for habeas relief from a deportation order, we
declined to resolve whether "the Fifth Amendment guarantees
immunity from self-incrimination under state statutes."
United
States ex rel. Vajtauer v.
Commissioner of Immigration,
273 U. S. 103,
113 (1927). Although we found that the witness had waived his claim
to the privilege, our decision might be read to suggest that there
was some tension between the reasoning of two of the cases
discussed above,
Hale v.
Henkel and
Brown v.
Walker, and the analyses contained in two others,
United
States v.
Saline Bank of Va., 1 Pet. 100 (1828), and
BaUmann v.
Fagin, 200 U. S. 186 (1906). 273
U. S., at 113. These last two cases have in fact been cited here
for the claim that prior to due process incorporation, the
privilege could be asserted in a federal proceeding based on fear
of prosecution by a State.6
Saline Bank and
BaUmann
are not, however, inconsistent with
Murdock.
In
Saline Bank, we permitted the defendants to refuse
discovery sought by the United States in federal court, where the
defendants claimed that their responses would result in
incrimination under the laws of Virginia. "The rule clearly is,
that a party is not bound to make any discovery which would expose
him to penalties, and this case falls within it." 1 Pet., at 104.
But, for all the sweep of this statement, the opinion makes no
mention of the Fifth Amendment, and in
Hale v.
Henkel, we explained that "the prosecution [in
Saline
Bank] was under a state law which imposed the penalty, and ...
the Federal court was simply
6 The language in
Vajtauer that has been cited in support
of this suggestion says only that our conclusion that the witness
waived his claim of privilege "makes it unnecessary for us to
consider the extent to which the Fifth Amendment guarantees
immunity from self-incrimination under state statutes or whether
this case is to be controlled by
Hale v.
Henkel,
201 U. S. 43;
Brown v.
Walker, 161 U. S. 591, 608;
compare
United States v.
Saline Bank, 1 Pet. 100;
BaUmann v.
Fagin, 200 U. S. 186, 195." 273
U. S., at 113.
679
administering the state law." 201 U. S., at 69. The state law,
which addresses prosecutions brought by the State, suggested the
rule that the
Saline Bank Court applied to the case before
it; the law provided that "no disclosure made by any party
defendant to such suit in equity, and no books or papers exhibited
by him in answer to the bill, or under the order of the Court,
shall be used as evidence against him in any ... prosecution under
this law," quoted in 1 Pet., at 104.
Saline Bank, then, may
have turned on a reading of state statutory law. Cf. McNaughton,
Self-Incrimination Under Foreign Law, 45 Va. L. Rev. 1299,
1305-1306 (1959) (suggesting that
Saline Bank represents "an
application not of the privilege against self-incrimination ... but
of the principle that equity will not aid a forfeiture"). But see
BaUmann, supra, at 195 (Holmes, J.) (suggesting that
Saline Bank is a Fifth Amendment case, though this view was
soon repudiated by the Court in
Hale, as just noted).
Where
Saline Bank is laconic,
BaUmann is
equivocal.
While Ballmann specifically argued only the danger of
incriminating himself under state law as his basis for invoking the
privilege in a federal proceeding, and we upheld his claim of
privilege, our opinion indicates that we concluded that Ballmann
might have had a fear of incrimination under federal law as well as
under state law. While we did suggest, contrary to the
Murdock rule, that Ballmann might have been able to invoke
the privilege based on a fear of state prosecution, the opinion
says only that "[o]ne way or the other [due to the risk of
incrimination under federal or state law] 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." 200 U. S., at 195-196. At
its equivocal worst,
BaUmann reigned for only two months.
Hale v.
Henkel explained that "the only danger to be
considered is one arising within the same jurisdiction and under
the same sovereignty," 201 U. S., at 69, and
BaUmann and
Saline
680
Bank were later, of course, superseded by
Murdock
with its unequivocal holding that prosecution in a state
jurisdiction not bound by the Clause is beyond the purview of the
privilege.
C
In 1964, our precedent took a turn away from the unqualified
proposition that fear of prosecution outside the jurisdiction
seeking to compel testimony did not implicate a Fifth or Fourteenth
Amendment privilege, as the case might be. In
Murphy v.
Waterfront Comm'n of N.
Y. Harbor, 378 U. S. 52 (1964), we
reconsidered the converse of the situation in
Murdock,
whether a witness in a state proceeding who had been granted
immunity from state prosecution could invoke the privilege based on
fear of prosecution on federal charges. In the course of enquiring
into a work stoppage at several New Jersey piers, the Waterfront
Commission of New York Harbor subpoenaed the defendants, who were
given immunity from prosecution under the laws of New Jersey and
New York. When the witnesses persisted in refusing to testify based
on their fear of federal prosecution, they were held in civil
contempt, and the order was affirmed by New Jersey's highest court.
In re Application of the Waterfront Comm'n of N.
Y.
Harbor, 39 N. J. 436, 449, 189 A. 2d 36, 44 (1963). This Court
held the defendants could be forced to testify not because fear of
federal prosecution was irrelevant but because the
Self-Incrimination Clause barred the National Government from using
their state testimony or its fruits to obtain a federal conviction.
We explained that "the constitutional privilege against
self-incrimination protects a state witness against incrimination
under federal as well as state law and a federal witness against
incrimination under state as well as federal law." 378 U. S., at
77-78.
Murphy is a case invested with two alternative
rationales.
Under the first, the result reached in
Murphy was
undoubtedly correct, given the decision rendered that very same day
in
Malloy v.
Hogan, 378 U. S. 1 (1964), which
applied the
681
doctrine of Fourteenth Amendment due process incorporation to
the Self-Incrimination Clause, so as to bind the States as well as
the National Government to recognize the privilege.
Id., at
3. Prior to
Malloy, the Court had refused to impose the
privilege against self-incrimination against the States through the
Fourteenth Amendment, see
Twining v.
New Jersey,
211 U. S. 78
(1908), thus leaving state-court witnesses seeking exemption from
compulsion to testify to their rights under state law, as
supplemented by the Fourteenth Amendment's limitations on coerced
confessions.
Malloy, however, established that "[t]he
Fourteenth Amendment secures against state invasion the same
privilege that the Fifth Amendment guarantees against federal
infringement-the right of a person to remain silent unless he
chooses to speak in the unfettered exercise of his own will, and to
suffer no penalty ... for such silence." 378 U. S., at 8.
As the Court immediately thereafter said in
Murphy,
Malloy "necessitate[d] a reconsideration" of the unqualified
Murdock rule that a witness subject to testimonial
compulsion in one jurisdiction, state or federal, could not plead
fear of prosecution in the other. 378 U. S., at 57. After
Malloy, the Fifth Amendment limitation could no longer be
seen as framed for one jurisdiction alone, each jurisdiction having
instead become subject to the same claim of privilege flowing from
the one limitation. Since fear of prosecution in the one
jurisdiction bound by the Clause now implicated the very privilege
binding upon the other, the
Murphy opinion sensibly
recognized that if a witness could not assert the privilege in such
circumstances, the witness could be "whipsawed into incriminating
himself under both state and federal law even though the
constitutional privilege against self-incrimination is applicable
to each." 378 U. S., at 55 (internal quotation marks omitted).7 The
whipsawing was possible owing to a
7 Prior to
Murphy, such "whipsawing" efforts had been
permissible, but arguably less outrageous since, as the opinion
notes, "either the 'compelling' government or the 'using'
government [was] a State, and, until today,
682
feature unique to the guarantee against self-incrimination among
the several Fifth Amendment privileges. In the absence of waiver,
the other such guarantees are purely and simply binding on the
government. But under the SelfIncrimination Clause, the government
has an option to exchange the stated privilege for an immunity to
prosecutorial use of any compelled inculpatory testimony.
Kastigar v.
United States, 406 U. S., at 448-449. The
only condition on the government when it decides to offer immunity
in place of the privilege to stay silent is the requirement to
provide an immunity as broad as the privilege itself.
Id.,
at 449. After
Malloy had held the privilege binding on the
state jurisdictions as well as the National Government, it would
therefore have been intolerable to allow a prosecutor in one or the
other jurisdiction to eliminate the privilege by offering immunity
less complete than the privilege's dual jurisdictional reach.
Murphy accordingly held that a federal court could not
receive testimony compelled by a State in the absence of a statute
effectively providing for federal immunity, and it did this by
imposing an exclusionary rule prohibiting the National Government
"from making any such use of compelled testimony and its fruits,"
378 U. S., at 79 (footnote omitted).
This view of
Murphy as necessitated by
Malloy was
adopted in the subsequent case of
Kastigar v.
United
States, supra, at 456, n. 42 ("Reconsideration of the rule that
the Fifth Amendment privilege does not protect a witness in one
jurisdiction against being compelled to give testimony that could
be used to convict him in another jurisdiction was made necessary
by the decision in
Malloy v.
Hogan"). Read this way,
Murphy rests upon the same understanding of the Self-
Incrimination Clause that
Murdock recognized and to which
the earlier cases had pointed. Although the Clause serves a variety
of interests in one degree or another, see
the States were not deemed fully bound by the privilege against
selfincrimination." 378 U. S., at 57, n. 6.
683
Part IV,
infra, at its heart lies the principle that the
courts of a government from which a witness may reasonably fear
prosecution may not in fairness compel the witness to furnish
testimonial evidence that may be used to prove his guilt. After
Murphy, the immunity option open to the Executive Branch
could be exercised only on the understanding that the state and
federal jurisdictions were as one, with a federally mandated
exclusionary rule filling the space between the limits of state
immunity statutes and the scope of the privilege.8 As so
understood,
Murphy stands at odds with Balsys's claim.
There is, however, a competing rationale in
Murphy,
investing the Clause with a more expansive promise. The
Murphy majority opened the door to this view by rejecting
this Court's previous understanding of the English common-law
evidentiary privilege against compelled selfincrimination, which
could have informed the Framers' understanding of the Fifth
Amendment privilege. See,
e. g.,
Murphy, 378 U. S.,
at 67 (rejecting
Murdock's analysis of the scope of the
privilege under English common law). Having removed what it saw as
an unjustified, historically derived
8 Of course, the judicial exclusion of compelled testimony
functions as a fail-safe to ensure that compelled testimony is not
admitted in a criminal proceeding. The general rule requires a
grant of immunity prior to the compelling of any testimony. We have
said that the prediction that a court in a future criminal
prosecution would be obligated to protect against the evidentiary
use of compelled testimony is not enough to satisfy the privilege
against compelled self-incrimination.
Pillsbury Co. v.
Conboy, 459 U.
S. 248, 261 (1983). The suggestion that a witness should rely
on a subsequent motion to suppress rather than a prior grant of
immunity "would [not] afford adequate protection. Without something
more, [the witness] would be compelled to surrender the very
protection which the privilege is designed to guarantee."
Maness v.
Meyers, 419 U. S. 449, 462 (1975)
(footnote and internal quotation marks omitted). This general rule
ensures that we do not "let the cat out with no assurance whatever
of putting it back," id., at 463 (internal quotation marks
omitted), and leaves the decision whether to grant immunity to the
Executive in accord with congressional policy, see
Pillsbury,
supra, at 262.
684
limitation on the privilege, the
Murphy Court expressed a
comparatively ambitious conceptualization of personal privacy
underlying the Clause, one capable of supporting, if not demanding,
the scope of protection that Balsys claims. As the Court of Appeals
recognized, if we take the
Murphy opinion at face value, the
expansive rationale can be claimed quite as legitimately as the
Murdock-Malloy-Kastigar understanding of
Murphy's
result, and Balsys's claim accordingly requires us to decide
whether
Murphy's innovative side is as sound as its
traditional one. We conclude that it is not.
As support for the view that the Court had previously
misunderstood the English rule,
Murphy relied, first, on two
preconstitutional English cases,
East India Co. v.
Campbell, 1 Yes. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749), and
Brownsword v.
Edwards, 2 Yes. sen. 243, 28 Eng. Rep.
157 (Ch. 1750), for the proposition that a witness in an English
court was permitted to invoke the privilege based on fear of
prosecution in a foreign jurisdiction. See 378 U. S., at 5859.
Neither of these cases is on point as holding that proposition,
however. In
East India Co., a defendant before the Court of
Exchequer, seeking to avoid giving an explanation for his
possession of certain goods, claimed the privilege on the ground
that his testimony might subject him to a fine or corporal
punishment. The Court of Exchequer found that the defendant would
be punishable in Calcutta, then an English Colony, and said it
would "not oblige one to discover that, which, if he answers in the
affirmative, will subject him to the punishment of a crime." 1 Yes.
sen., at 247, 27 Eng. Rep., at 1011. In
Brownsword, a
defendant before the Court of Chancery claimed the privilege on the
ground that her testimony could render her liable to prosecution in
an English ecclesiastical court. "The general rule," the court
said, "is that no one is bound to answer so as to subject himself
to punishment, whether that punishment arises by the ecclesiastical
law of the land." 2 Yes. sen., at 245, 28 Eng.
685
Rep., at 158. Although this statement, like its counterpart in
East India Co., is unqualified, neither case is authority
for the proposition that fear of prosecution in foreign courts
implicates the privilege. For in each of these cases, the judicial
system to which the witness's fears related was subject to the same
legislative sovereignty that had created the courts in which the
privilege was claimed.9 In fact, when these cases were decided, and
for years after adoption of the Fifth Amendment, English authority
was silent on whether fear of prosecution by a foreign nation
implicated the privilege, and the Vice-Chancellor so stated in
1851. See
King of the Two Sicilies v.
Willcox, 1 Sim.
(N. S.) 301, 331, 61 Eng. Rep. 116, 128 (Ch. 1851) (observing, in
the course of an opinion that clearly involved a claim of privilege
based on the fear of prosecution by another sovereign, that there
is an "absence of all authority on the point").
Murphy, in fact, went on to discuss the case last cited, as well
as a subsequent one. The Murphy majority began by acknowledging
that
King of the Two Sicilies was not authority for
attacking this Court's prior view of English law. 378 U. S., at 60.
In an opinion by Lord Cranworth, the Court of Chancery declined to
allow defendants to assert the privilege
9 Further, the courts of both jurisdictions, at least in some
cases, recognized the privilege against self-incrimination.
East
India Co. makes specific reference to the fact that the
witness's testimony might be incriminating under the laws of
Calcutta. 1 Yes. sen., at 247, 27 Eng. Rep., at 1011 ("[T]hat he is
punishable appears from the case of
Omichund v.
Barker [1
Atk. 21, 26 Eng. Rep. 15 (1744)], as a
jurisdiction is erected in
Calcutta for criminal facts"). As
of 1726, Calcutta was a "presidency town," which was subject to the
civil jurisdiction of a "mayor's court." The mayor's court followed
the English Rules of Evidence, which would have included the rule
against self-incrimination. 1 Woodroffe & Ameer Ali's Law of
Evidence in India 13 (P. Ramaswami & S. Rajagopalan eds., 11th
ed. 1962). The ecclesiastical courts of England also recognized
something akin to the privilege at this time in some cases. See
Helmholz, Origins of the Privilege Against Self-Incrimination: The
Role of the European
Ius Commune, 65 N. Y. U. L. Rev. 962,
969-974 (1990) (citing cases heard in ecclesiastical courts in
which the privilege was recognized).
686
based on their fear of prosecution in Sicily, for two reasons. 1
Sim. (N. S.), at 329, 61 Eng. Rep., at 128. The first was the
court's belief that the privilege speaks only to matters that might
be criminal under the laws of England: "The rule relied on by the
Defendants, is one which exists merely by virtue of our own
municipal law, and must, I think, have reference, exclusively, to
matters penal by that law: to matters as to which, if disclosed,
the Judge would be able to say, as matter of law, whether it could
or could not entail penal consequences." For the second, the court
relied on the unlikelihood that the defendants would ever leave
England and be subject to Sicilian prosecution.
The
Murphy majority nonetheless understood this rule to
have been undermined by the subsequent case of
United States of
America v.
McRae, 3 L. R. Ch. 79 (1867). See 378 U. S.,
at 61. In that suit brought by the United States against McRae in
England to recover funds that he had collected there as a
Confederate agent during the Civil War, the court recognized the
privilege based on McRae's claim that his testimony would
incriminate him in the United States. The court distinguished the
litigation then before it from
King of the Two Sicilies,
indicating that though it agreed with the general principles stated
by Lord Cranworth, see 3 L. R. Ch., at 84, he had not needed to lay
down the broad proposition that invocation of the privilege was
appropriate only with regard to matters penal under England's own
law, see id., at 85. The court did not say that the privilege could
be invoked in any case involving fear of prosecution under foreign
law, however. Instead it noted two distinctions from
King of the
Two Sicilies, the first being that the "presumed ignorance of
the Judge as to foreign law" on which
King of the Two
Sicilies rested has been "completely removed by the admitted
statements upon the pleadings," 3 L. R. Ch., at 85; the second
being that
McRae presented the unusual circumstance that the
party seeking to compel the testimony, the United States, was also
the party
687
that would prosecute any crime under its laws that might thereby
be revealed, id., at 87. The court's holding that the privilege
could be invoked in such circumstances does not, however, support a
general application of the privilege in any case in which a witness
fears prosecution under foreign law by a party not before the
court. Thus,
Murphy went too far in saying that
McRae
overruled
King of the Two Sicilies.lO See
Murphy, 378
U. S., at 71. What is of more fundamental importance, however, is
that even if
McRae had announced a new development in
English law going to the heart of
King of the Two Sicilies,
it would have been irrelevant to Fifth Amendment interpretation.
The presumed influence of English law on the intentions of the
Framers hardly invests the Framers with clairvoyance, and
subsequent English developments are not attributable to the Framers
by some rule of renvoi. Cf.
Brown, 161 U. S., at 600 (citing
Cathcart v.
Robinson, 5 Pet. 264, 280 (1831)). Since
McRae neither stated nor implied any disagreement with Lord
Cranworth's 1857 statement in
King of the Two Sicilies that
there was no clear prior authority on the question, the
Murphy Court had no authority showing that
Murdock
rested on unsound historical assumptions contradicted by opinions
of the English courts.
10 Murphy also cites
Heriz v.
Riera, 11
Sim. 318, 59 Eng. Rep. 896 (1840), as support for the claim that
the English rule allowed invocation of the privilege based on fear
of prosecution abroad. See 378 U. S., at 63. In that case two
Spanish women brought suit in England alleging that the defendant
had violated a contract that he entered into with their brother and
to which they were entitled to the proceeds as his heirs. The
contract provided that the plaintiffs' brother (and they as his
heirs) were entitled to a share of the proceeds from a mercantile
contract with the Spanish Government. The defendant responded that
the contract was illegal under the laws of Spain and hence
unenforceable and resisted discovery because his answers might
incriminate him under the Spanish code. The court accepted the
defendant's plea, though it is unclear whether the court ruled on
the merits of the plaintiffs' claim or the self-incrimination
issue. See Grant, Federalism and Self-Incrimination, 5 UCLA L. Rev.
1,2 (1958).
688
In sum, to the extent that the
Murphy majority went
beyond its response to
Malloy and undercut
Murdock's
rationale on historical grounds, its reasoning cannot be accepted
now. Long before today, indeed,
Murphy's history was shown
to be fatally flawed.ll
11
Murphy, 378 U. S., at 81, n. 1 (Harlan, J., concurring
in judgment) ("The English rule is not clear");
United
States v.
(Under Seal), 794 F. 2d, at 927 ("The Court's
scholarship with respect to English law in this regard has been
attacked,
see Note, 69 Va. L. Rev. at 893-94 .... We do not
enter the dispute as to whether
Murphy represents a correct
statement of the English rule at a particular time because we do
not think that the
Murphy holding depended upon the
correctness of the Court's understanding of the state of English
law and reliance thereon as the sole basis for decision. Rather,
Murphy proceeds as a logical consequence to the holding in
Malloy v. Hogan ... "); Note, Fifth Amendment Privilege
Against Self-Incrimination and Fear of Foreign Prosecution, 96
Colum. L. Rev. 1940, 1944-1946, 1949, and nn. 79-81 (1996) ("The
uncertainty of English law on [the question whether the privilege
can be invoked based on fear of prosecution] casts doubt on the
Supreme Court's holding in
Murphy, which was based on the
assertion that
McRae 'represents the settled "English rule"
regarding self-incrimination under foreign law.' Indeed, the
Murphy Court's reliance on its idea of the 'true' English
rule has been criticized by commentators, and its reading of
British law was essentially overruled by the British Parliament.
Murphy's reliance on mistaken interpretation and application
of English law weakens its precedential value" (footnotes
omitted)); Note, The Reach of the Fifth Amendment Privilege When
Domestically Compelled Testimony May Be Used in a Foreign Country's
Court, 69 Va. L. Rev. 875, 893-895 (1983) ("[T]he English rule
argument has three fatal flaws. First, the so-called English rule,
decided in 1867, never was
the English rule despite
overstatements by several American commentators and the
Murphy Court. British commentators remained uncertain for
nearly a century about the extent to which, if at all, their
privilege protected against foreign incrimination .... Second, the
English courts had not decided a case involving incrimination under
the criminal laws of independent foreign sovereigns by the time our
Constitution was framed. The only English cases involving
independent sovereigns were decided more than sixty years later.
Thus, even if the fifth amendment embodied the English common law
at the time it was framed, the privilege did not incorporate any
rule concerning foreign incrimination. Finally, even if the English
rule protected against foreign incrimination, the Supreme Court in
Zicarelli indicated that it had not
689
D
Although the Court and JUSTICE BREYER'S dissent differ on
details, including some considerations of policy addressed in Part
IV,
infra, our basic disagreement with that dissent turns on
three points. First, we start with what we think is the most
probable reading of the Clause in its Fifth Amendment context, as
limiting its principle to concern with prosecution by a sovereign
that is itself bound by the Clause; the dissent instead emphasizes
the Clause's facial breadth as consistent with a broader principle.
Second, we rely on the force of our precedent, notably
Murdock, as confirming this same-sovereign principle, as
adapted to reflect the post
Malloy requirement of immunity
effective against both sovereigns subject to the one privilege
under the National Constitution; the dissent attributes less force
to
Murdock, giving weight to its tension with the
Saline
Bank language, among other things. Third, we reject
Murphy's restatement of the common-law background and read
none of the common-law cases as authority inconsistent with our
contextual reading of the Clause, later confirmed by precedent such
as
Murdock; the dissent finds support in the common-law
cases for
Murphy's historical reexamination and the broader
reading of the Clause. In the end, our contextual reading of the
Clause, combined with the
Murdock holding, places a burden
on any-
formally adopted the rule in
Murphy" (footnotes
omitted)); Capra, The Fifth Amendment and the Risk of Foreign
Prosecution, N. Y. L. J., Mar. 8, 1991, p. 3 ("[D]espite Justice
Goldberg's assertions in
Murphy, it is clear that there was
never a 'true' or uniform English rule .... [T]o the extent that
the English rule would be pertinent to the Fifth Amendment
privilege, it would have had to exist at the time the Fifth
Amendment was adopted. Yet, as even Justice Goldberg admitted in
Murphy, the English cases involving independent sovereigns
were decided more than 60 years after the Fifth Amendment was
adopted"); see also Law Reform Committee, Sixteenth Report, 1967,
Cmnd. 3472, U1, p. 7 (explaining that English common law on the
question is not "wholly consistent").
Murphy's reexamination of history also adopted the
illegitimate reading of
Saline Bank, rejected
supra,
at 678-679.
690
one who contests the basic same-sovereign principle, a burden
that only clear, contrary, preframing common law might carry; since
the dissent starts with a broader reading of the Clause and a less
potent view of
Murdock, it does not require
Murphy
and the common-law cases to satisfy such a burden before
definitively finding that a more expansive principle underlies the
Clause.
IV
There remains, at least on the face of the
Murphy
majority's opinion, a further invitation to revise the principle of
the Clause from what
Murdock recognized. The
Murphy
majority opens its discussion with a catalog of "Policies of the
Privilege," 378 U. S., at 55 (citations and internal quotation
marks omitted):
"It reflects many of our fundamental values and most noble
aspirations: our unwillingness to subject those suspected of crime
to the cruel trilemma of selfaccusation, perjury or contempt; our
preference for an accusatorial rather than an inquisitorial system
of criminal justice; our fear that self-incriminating statements
will be elicited by inhumane treatment and abuses; our sense of
fair play which dictates a fair state-individual balance by
requiring the government to leave the individual alone until good
cause is shown for disturbing him and by requiring the government
in its contest with the individual to shoulder the entire load; our
respect for the inviolability of the human personality and of the
right of each individual to a private enclave where he may lead a
private life, our distrust of self-deprecatory statements; and our
realization that the privilege, while sometimes a shelter to the
guilty, is often a protection to the innocent."
Some of the policies listed would seem to point no further than
domestic arrangements and so raise no basis for any privilege
looking beyond fear of domestic prosecution. Oth-
691
ers, however, might suggest a concern broad enough to encompass
foreign prosecutions and accordingly to support a more expansive
theory of the privilege than the
Murdock understanding would
allow.
The adoption of any such revised theory would, however,
necessarily rest on
Murphy's reading of preconstitutional
common-law cases as support for (or at least as opening the door
to) the expansive view of the Framers' intent, which we and the
commentators since
Murphy have found to be unsupported. Once
the
Murphy majority's treatment of the English cases is
rejected as an indication of the meaning intended for the Clause,
Murdock must be seen as precedent at odds with Balsys's
claim. That precedent aside, however, we think there would be sound
reasons to stop short of resting an expansion of the Clause's scope
on the highly general statements of policy expressed in the
foregoing quotation from
Murphy. While its list does indeed
catalog aspirations furthered by the Clause, its discussion does
not even purport to weigh the host of competing policy concerns
that would be raised in a legitimate reconsideration of the
Clause's scope.
A
The most general of
Murphy's policy items ostensibly
suggesting protection as comprehensive as that sought by Balsys is
listed in the opinion as "the inviolability of the human
personality and ... the right of each individual to a private
enclave where he may lead a private life." 378 U. S., at 55
(internal quotation marks omitted). Whatever else those terms might
cover, protection of personal inviolability and the privacy of a
testimonial enclave would necessarily seem to include protection
against the Government's very intrusion through involuntary
interrogation.12 If in fact
12We are assuming,
arguendo, that the intrusion is a
subject of the Clause's protection. See
Murphy, 378 U. S.,
at 57, n. 6;
Gecas, 120 F. 3d, at 1462 (Birch, J.,
dissenting); cf.
United States v.
Verdugo-Urquidez,
494 U. S. 259, 264 (1990) ("The privilege against
self-incrimination guaranteed
692
these values were reliable guides to the actual scope of
protection under the Clause, they would be seen to demand a very
high degree of protection indeed: "inviolability" is, after all, an
uncompromising term, and we know as well from Fourth Amendment law
as from a layman's common sense that breaches of privacy are
complete at the moment of illicit intrusion, whatever use mayor may
not later be made of their fruits. See
United States v.
Verdugo-Urquidez, 494 U. S. 259, 264 (1990) (citing
United States v.
Calandra, 414 U. S. 338, 354
(1974);
United States v.
Leon, 468 U. S. 897, 906
(1984)).
The Fifth Amendment tradition, however, offers no such degree of
protection. If the Government is ready to provide the requisite use
and derivative use immunity, see
Kastigar, 406 U. S., at
453; see also
Lefkowitz v.
Turley, 414 U. S. 70, 84 (1973),
the protection goes no further: no violation of personality is
recognized and no claim of privilege will availY One might reply
that the choice of the word "inviolability" was just unfortunate;
while testimonial integrity may not be inviolable, it is
sufficiently served by requiring the Government to pay a price in
the form of use (and derivative use) immunity before a refusal to
testify will be overruled. But that answer overlooks the fact that
when a witness's response will raise no fear of criminal penalty,
there is no protection for testimonial privacy at all. See
United States v.
Ward, 448 U. S. 242, 248-255
(1980).
Thus, what we find in practice is not the protection of personal
testimonial inviolability, but a conditional protection of
testimonial privacy subject to basic limits recognized before
by the Fifth Amendment is a fundamental trial right of criminal
defendants. Although conduct by law enforcement officials prior to
trial may ultimately impair that right, a constitutional violation
occurs only at trial" (citation omitted)).
13 The practice of exchanging silence for immunity is
unchallenged here and presumably invulnerable, being apparently as
old as the Fifth Amendment itself. See
Kastigar, 406 U. S.,
at 445, and n. 13.
693
the framing 14 and refined through immunity doctrine in the
intervening years. Since the Judiciary could not recognize fear of
foreign prosecution and at the same time preserve the Government's
existing rights to seek testimony in exchange for immunity (because
domestic courts could not enforce the immunity abroad), it follows
that extending protection as Balsys requests would change the
balance of private and governmental interests that has seemingly
been accepted for as long as there has been Fifth Amendment
doctrine. The upshot is that accepting personal testimonial
integrity or privacy as a prima facie justification for the
development Balsys seeks would threaten a significant change in the
scope of traditional domestic protection; to the extent, on the
other hand, that the domestic tradition is thought worthy of
preservation, an appeal to a general personal testimonial integrity
or privacy is not helpful. See
Doe v.
United States,
487 U. S. 201,
213, n. 11 (1988) (finding no violation of the privilege "[d]espite
the impact upon the inviolability of the human personality");
Schmerber v.
California, 384 U. S. 757, 762 (1966)
(holding that a witness cannot rely on the privilege to decline to
provide blood samples);
ibid. ("[T]he privilege has never
been given the full scope which the values that it helps to protect
suggest").
B
Murphy's policy catalog would provide support, at a
rather more concrete level, for Balsys's argument that application
of the privilege in situations like his would promote the purpose
of preventing government overreaching, which on anyone's view lies
at the core of the Clause's purposes. This argument begins with the
premise that "cooperative internationalism" creates new incentives
for the Government to facilitate foreign criminal prosecutions.
Because crime, like legitimate trade, is increasingly
international, a correspond-
14 See n. 13,
supra.
694
ing degree of international cooperation is coming to
characterize the enterprise of criminal prosecution.15 The mission
of the OS1 as shown in this case exemplifies the international
cooperation that is said to undermine the legitimacy of treating
separate governmental authorities as separate for purposes of
liberty protection in domestic courts. Because the Government now
has a significant interest in seeing individuals convicted abroad
for their crimes, it is subject to the same incentive to overreach
that has required application of the privilege in the domestic
context. Balsys says that this argument is nothing more than the
reasoning of the
Murphy Court when it justified its
recognition of a fear of state prosecution by looking to the
significance of" 'cooperative federalism,'" the teamwork of state
and national officials to fight interstate crime. 378 U. S., at
55-56.
But Balsys invests
Murphy's "cooperative federalism" with
a significance unsupported by that opinion. We have already pointed
out that
Murphy's expansion upon
Murdock is not
supported by
Murphy's unsound historical reexamination, but
must rest on
Murphy's other rationale, under which its
holding is a consequence of
Malloy. That latter reading is
essential to an understanding of "cooperative federalism." For the
Murphy majority, "cooperative federalism" was not important
standing alone, but simply because it underscored the significance
of the Court's holding that after
Malloy it would be
unjustifiably formalistic for a federal court to ignore fear of
state prosecution when ruling on a privilege claim. Thus, the Court
described the "whipsaw" effect that the decision in
Malloy
would have created if fear of state prosecution were not cognizable
in a federal proceeding:
"[The] policies and purposes [of the privilege] are defeated
when a witness can be whipsawed into incriminating himself under
both state and federal law
15 The Court of Appeals cited a considerable number of studies
in the growing literature on the subject.
119
F.3d 122, 130-131 (CA2 1997).
695
even though the constitutional privilege against
selfincrimination is applicable to each. This has become especially
true in our age of 'cooperative federalism,' where the Federal and
State Governments are waging a united front against many types of
criminal activity." 378 U. S., at 55-56 (citation and internal
quotation marks omitted).
Since in this case there is no analog of
Malloy, imposing
the Fifth Amendment beyond the National Government, there is no
premise in Murphy for appealing to "cooperative internationalism"
by analogy to "cooperative federalism." 16 Any analogy must,
instead, be to the pre-Murphy era when the States were not bound by
the privilege. Then, testimony compelled in a federal proceeding
was admissible in a state prosecution, despite the fact that shared
values and similar criminal statutes of the state and national
jurisdictions presumably furnished incentive for overreaching by
the Government to facilitate criminal prosecutions in the
States.
But even if Murphy were authority for considering "cooperative
federalism" and "cooperative internationalism" as reasons
supporting expansion of the scope of the privilege,
16 There is indeed nothing comparable to the Fifth Amendment
privilege in any supranational prohibition against compelled
self-incrimination derived from any source, the privilege being "at
best an emerging principle of international law." See Amann, A
Whipsaw Cuts Both Ways, 45 UCLA L. Rev. 1201, 1259 (1998)
(hereinafter Amann).
In the course of discussing the Eleventh Circuit case raising
the same issue as this one, Amann suggests nonetheless that the
whipsaw rationale has particular salience on these facts because
along with the United States, Lithuania and Israel are signatories
to the International Covenant on Civil and Political Rights, Dec.
16, 1966, G. A. Res. 2200, which recognizes something akin to the
privilege. See Amann 1233, n. 206. The significance of being bound
by the Covenant, however, is limited by its provision that the
privilege is derogable and accordingly may be infringed if public
emergency necessitates.
Id., at 1259, n. 354. In any event,
Balsys has made no claim under the Covenant, and its current
enforceability in the courts of the signatories is an issue that is
not before us.
696
any extension would depend ultimately on an analysis of the
likely costs and benefits of extending the privilege as Balsys
requests. If such analysis were dispositive for us, we would
conclude that Balsys has not shown that extension of the protection
would produce a benefit justifying the rule he seeks.
The Court of Appeals directed careful attention to an evaluation
of what would be gained and lost on Balsys's view. It concluded,
for example, that few domestic cases would be adversely affected by
recognizing the privilege based upon fear of foreign prosecution,
119 F. 3d, at 135-137; 17 that American contempt sanctions for
refusal to testify are so lenient in comparison to the likely
consequences of foreign prosecution that a witness would probably
refuse to testify even if the privilege were unavailable to him,
id., at 142 (Block, J., concurring); that by statute and treaty the
United States could limit the occasions on which a reasonable fear
of foreign prosecution could be shown, as by modifying extradition
and deportation standards in cases involving the privilege, id., at
138-139; and that because a witness's refusal to testify may be
used as evidence in a civil proceeding, deportation of people in
Balsys's position would not necessarily be thwarted by recognizing
the privilege as he claims it, id., at 136.
The Court of Appeals accordingly thought the net burden of the
expanded privilege too negligible to justify denying its expansion.
We remain skeptical, however. While we will not attempt to comment
on every element of the Court of Appeals's calculation, two of the
points just noted would present difficulty. First, there is a
question about the standard that should govern any decision to
justify a truly discretionary ruling by making the assumption that
it will induce the Government to adopt legislation with
international implications or to seek international agreements, in
order to
17The assessment was, of course, necessarily based on experience
under the same-sovereign view of the privilege.
697
mitigate the burdens that the ruling would otherwise impose.
Because foreign relations are specifically committed by the
Constitution to the political branches, Art. II, § 2, cl. 2, we
would not make a discretionary judgment premised on inducing them
to adopt policies in relation to other nations without squarely
confronting the propriety of grounding judicial action on such a
premise.
Second, the very assumption that a witness's silence may be used
against him in a deportation or extradition proceeding due to its
civil nature, 119 F. 3d, at 136 (citing
LopezMendoza, 468 U.
S., at 1038-1039), raises serious questions about the likely gain
from recognizing fear of foreign prosecution. For if a witness
claiming the privilege ended up in a foreign jurisdiction that, for
whatever reason, recognized no privilege under its criminal law,
the recognition of the privilege in the American courts would have
gained nothing for the witness. This possibility, of course,
presents a sharp contrast with the consequences of recognizing the
privilege based on fear of domestic prosecution. If testimony is
compelled,
Murphy itself illustrates that domestic courts
are not even wholly dependent on immunity statutes to see that no
use will be made against the witness; the exclusionary principle
will guarantee that. See
Murphy, 378 U. S., at 79. Whatever
the cost to the Government may be, the benefit to the individual is
not in doubt in a domestic proceeding.
Since the likely gain to the witness fearing foreign prosecution
is thus uncertain, the countervailing uncertainty about the loss of
testimony to the United States cannot be dismissed as comparatively
unimportant. That some testimony will be lost is highly probable,
since the United States will not be able to guarantee immunity if
testimony is compelled (absent some sort of cooperative
international arrangement that we cannot assume will occur). While
the Court of Appeals is doubtless correct that the expected
consequences of some foreign prosecutions may be so severe that a
witness will refuse to testify no matter what, not
698
every foreign prosecution may measure up so harshly as against
the expectable domestic consequences of contempt for refusing to
testify. We therefore must suppose that on Balsys's view some
evidence will in fact be lost to the domestic courts, and we are
accordingly unable to dismiss the position of the United States in
this case, that domestic law enforcement would suffer serious
consequences if fear of foreign prosecution were recognized as
sufficient to invoke the privilege.
In sum, the most we would feel able to conclude about the net
result of the benefits and burdens that would follow from Balsys's
view would be a Scotch verdict. If, then, precedent for the
traditional view of the scope of the Clause were not dispositive of
the issue before us, if extending the scope of the privilege were
open to consideration, we still would not find that Balsys had
shown that recognizing his claim would be a sound resolution of the
competing interests involved.
v
This is not to say that cooperative conduct between the United
States and foreign nations could not develop to a point at which a
claim could be made for recognizing fear of foreign prosecution
under the Self-Incrimination Clause as traditionally understood. If
it could be said that the United States and its allies had enacted
substantially similar criminal codes aimed at prosecuting offenses
of international character, and if it could be shown that the
United States was granting immunity from domestic prosecution for
the purpose of obtaining evidence to be delivered to other nations
as prosecutors of a crime common to both countries, then an
argument could be made that the Fifth Amendment should apply based
on fear of foreign prosecution simply because that prosecution was
not fairly characterized as distinctly "foreign." The point would
be that the prosecution was as much on behalf of the United States
as of the prosecuting nation, so that the division of labor between
evidence gath-
699
erer and prosecutor made one nation the agent of the other,
rendering fear of foreign prosecution tantamount to fear of a
criminal case brought by the Government itself.
Whether such an argument should be sustained may be left at the
least for another day, since its premises do not fit this case. It
is true that Balsys has shown that the United States has assumed an
interest in foreign prosecution, as demonstrated by OS1's mandate
18 and American treaty agreements 19 requiring the Government to
give to Lithuania and Israel any evidence provided by Balsys. But
this interest does not rise to the level of cooperative
prosecution. There is no system of complementary substantive
offenses
18 According to Order No. 851-79, reprinted in App. 15-17, the
OSI shall "[m]aintain liaison with foreign prosecution,
investigation and intelligence offices; [u]se appropriate
Government agency resources and personnel for investigations,
guidance, information, and analysis; and [d]irect and coordinate
the investigation, prosecution, and any other legal actions
instituted in these cases with the Immigration and Naturalization
Service, the Federal Bureau of Investigation, the United States
Attorneys Offices, and other relevant Federal agencies."
19 The United States and Lithuania have entered into an
agreement that provides that the two governments "agree to
cooperate in prosecution of persons who are alleged to have
committed war crimes ... agree to provide mutual legal assistance
concerning the prosecution of persons suspected of having committed
war crimes ... will assist each other in the location of witnesses
believed to possess relevant information about criminal actions ...
during World War II, and agree to intermediate and endeavor to make
these witnesses available for the purpose of giving testimony in
accordance with the laws of the Republic of Lithuania to authorized
representatives of the United States Department of Justice."
Memorandum of Understanding Between the United States Department of
Justice and the Office of the Procurator General of the Republic of
Lithuania Concerning Cooperation in the Pursuit of War Criminals,
Aug. 3, 1992, reprinted in App. in No. 96-6144 (CA2), pp.
396-397.
The District Court found that though it had not been made aware
of a treaty between the United States and Israel requiring
disclosure of information related to war crimes, OSI had shared
such information in the past and that it would be consistent with
OSI's mandate from the Attorney General for OSI to do so again. 918
F. Supp. 588, 596 (EDNY 1996).
700
at issue here, and the mere support of one nation for the
prosecutorial efforts of another does not transform the prosecution
of the one into the prosecution of the other. Cf.
Bartkus v.
Illinois, 359
U. S. 121, 122-124 (1959) (rejecting double jeopardy claim
where federal officials turned over all evidence they had gathered
in connection with federal prosecution of defendant for use in
subsequent state prosecution of defendant). In this case there is
no basis for concluding that the privilege will lose its meaning
without a rule precluding compelled testimony when there is a real
and substantial risk that such testimony will be used in a criminal
prosecution abroad.
***
Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
While I join the Court's opinion without reservation, I write
separately to emphasize these points.
The Clause that protects every person from being "compelled in
any criminal case to be a witness against himself" is a part of the
broader protection afforded by the Fifth Amendment to the
Constitution. That Amendment constrains the power of the Federal
Government to deprive any person "of life, liberty, or property,
without due process of law," just as the Fourteenth Amendment
imposes comparable constraints on the power of the States. The
primary office of the Clause at issue in this case is to afford
protection to persons whose liberty has been placed in jeopardy in
an American tribunal. The Court's holding today will not have any
adverse impact on the fairness of American criminal trials.
The fact that the issue in this case has been undecided for such
a long period of time suggests that our ruling will have
701
little, if any, impact on the fairness of trials conducted in
other countries. Whether or not that suggestion is accurate, I do
not believe our Bill of Rights was intended to have any effect on
the conduct of foreign proceedings. If, however, we were to accept
respondent's interpretation of the Clause, we would confer power on
foreign governments to impair the administration of justice in this
country. A law enacted by a foreign power making it a crime for one
of its citizens to testify in an American proceeding against
another citizen of that country would immunize those citizens from
being compelled to testify in our courts. Variants of such a
hypothetical law are already in existence. See
Societe Nationale
Industrielle Aerospatiale v.
United States Dist. Court for
Southern Dist. of Iowa, 482 U. S. 522, 526, n. 6
(1987); see also id., at 544-545, n. 29. Of course, the Court might
craft exceptions for such foreign criminal laws, but it seems far
wiser to adhere to a clear limitation on the coverage of the Fifth
Amendment, including its privilege against self-incrimination. That
Amendment prescribes rules of conduct that must attend any
deprivation of life, liberty, or property in our Nation's
courts.
JUSTICE GINSBURG, dissenting.
The privilege against self-incrimination, "closely linked
historically with the abolition of torture," is properly regarded
as a "landmar[k] in man's struggle to make himself civilized." E.
Griswold, The Fifth Amendment Today 7 (1955); see id., at 8 (Fifth
Amendment expresses "one of the fundamental decencies in the
relation we have developed between government and man"). In my
view, the Fifth Amendment privilege against self-incrimination
prescribes a rule of conduct generally to be followed by our
Nation's officialdom. It counsels officers of the United States
(and of any State of the United States) against extracting
testimony when the person examined reasonably fears that his words
would be used against him in a later criminal prosecution.
702
As a restraint on compelling a person to bear witness against
himself, the Amendment ordinarily should command the respect of
United States interrogators, whether the prosecution reasonably
feared by the examinee is domestic or foreign. Cf.
DKT Memorial
Fund Ltd. v.
Agency for International Development,
887 F.2d
275, 307-308 (CADC 1989) (R. B. Ginsburg, J., concurring in
part and dissenting in part) ("just as our flag carries its message
... both at home and abroad, so does our Constitution and the
values it expresses") (citation and internal quotation marks
omitted);
United States v.
Tiede, 86 F. R. D. 227 (u.
S. Court for Berlin 1979) (foreign national accused of hijacking
Polish aircraft abroad was tried under German substantive law in
Berlin in a court created by United States; U. S. court held
foreign national entitled to jury trial as a matter of
constitutional right). On this understanding of the "fundamental
decenc[y]" the Fifth Amendment embodies, "its expression of our
view of civilized governmental conduct," Griswold,
supra, at
8, 9, I join JUSTICE BREYER'S dissenting opinion.
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
Were Aloyzas Balsys to face even a theoretical possibility that
his testimony could lead a State to prosecute him for murder, the
Fifth Amendment would prohibit the Federal Government from
compelling that testimony. The Court concludes, however, that the
Fifth Amendment does not prohibit compulsion here because Balsys
faces a real and substantial danger of prosecution not, say, by
California, but by a foreign nation. The Fifth Amendment, however,
provides that "[n]o person ... shall be compelled in
any
criminal case to be a witness against himself." U. S. Const., Amdt.
5 (emphasis added). This Court has not read the words "any criminal
case" to limit application of the Clause to only
federal
criminal cases. See
Murphy v.
Waterfront Comm'n of N.
Y. Harbor, 378
U. S. 52 (1964). That precedent, as well
703
as the basic principles underlying the privilege, convince me
that the Fifth Amendment's privilege against selfincrimination
should encompass not only feared domestic prosecutions, but also
feared foreign prosecutions where the danger of an actual foreign
prosecution is substantial.
I
I begin with a point that focuses upon precedent setting forth
the current understanding of the scope of the word "any," and that
reveals the basic difference between the majority's view of the
privilege and the view this Court has previously taken and should
continue to take. The majority focuses upon one case,
Murphy
v.
Waterfront Comm'n of N.
Y. Harbor, supra, which
itself discusses much historically relevant precedent. And the
majority's focus upon that one case is appropriate.
Murphy holds that "the constitutional privilege against
self-incrimination protects ... a federal witness against
in-crimination under state ... law."
Id., at 77-78. As I
read
Murphy, the Court thought this conclusion flowed
naturally from its basic understanding of the scope of the Fifth
Amendment privilege. On that understanding, the privilege prohibits
federal courts (and state courts through the Fourteenth Amendment)
from compelling a witness to furnish testimonial evidence that may
be used to prove his guilt
if that witness may reasonably fear
criminal prosecution. See
id., at 60-63 (discussing the
English cases,
King of Two Sicilies v.
Willcox, 1
Sim. (N. S.) 301, 61 Eng. Rep. 116 (Ch. 1851), and
United States
of America v.
McRae, 3 L. R. Ch. 79 (1867), as ones
that, if rightly understood, embody that proposition of law).
The privilege, understood in this way, requires the abolition of
any "same sovereign" rule. It is often reasonable for a federal
witness to fear state prosecution, and vice versa. Indeed, where
testimony may incriminate and immunity has not been granted, it is
so reasonable that one can say, as a
704
matter of law, that the privilege applies, across jurisdictions,
to the entire class of cases involving federal witnesses who fear
state prosecutions and also to the entire class of cases involving
state witnesses who fear federal prosecutions. See
Murphy,
supra, at 77-78. Thus, the Fifth Amendment (or the Fourteenth
Amendment) automatically prohibits compelled testimony in any such
cross-jurisdictional circumstance.
If I am right about how
Murphy should be understood, then
that case directs the application of the privilege in this one.
That is because the only difference between
Murphy and this
case is that one cannot say, as a matter of law, that
every
threat of a foreign prosecution is a reasonable threat. But where
there is such a reasonable threat-where the threat is "real and
substantial,"
Zicarelli v.
New Jersey Comm'n of
Investigation, 406 U. S. 472, 478
(1972)-the privilege, as
Murphy understands it, would
apply.
A
The majority says that one can read
Murphy as embodying a
very different rationale, a rationale that turns upon
considerations of federalism-the need to consider "state and
federal jurisdictions ... as one" for purposes of applying the
privilege.
Ante, at 683. It reads
Murphy as a case
that sees at the heart of the Clause
"the principle that the courts of a government from which
a witness may reasonably fear prosecution may not in fairness
compel the witness to furnish testimonial evidence that may be used
to prove his guilt." Ante, at 683 (emphasis added).
I have underscored the key words "from which." It is these words
that tie the Clause to prosecutions by the same sovereign.
But what is the evidence that
Murphy put any legal weight
at all upon those underscored words? What reason
705
has the majority to believe that
Murphy subscribes to, or
depends in any way upon, this phrasing of the privilege's
"principle" rather than upon the critically different "principle" I
suggested above, i.
e., the principle that "courts may not
in fairness compel a witness who reasonably fears prosecution to
furnish testimony that may be used to prove his guilt?"
The majority points to two relevant
Murphy
statements.
In the first,
Murphy said that
Malloy v.
Hogan, 378 U. S.
1 (1964), which incorporated the Fifth Amendment privilege as
part of the Fourteenth Amendment's Due Process Clause,
"necessitates a reconsideration" of
United States v.
Murdock, 284
U. S. 141 (1931), which had held that the Fifth Amendment
protected an individual only from prosecutions by the Federal
Government.
Murphy, 378 U. S., at 57. In the second,
Murphy mentioned, as one of many items of support for its
analysis, that most Fifth Amendment policies are defeated
"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."
Id., at 55 (quoting Knapp v. Schweitzer,
357 U. S. 371,
385 (1958) (Black, J., dissenting) ).
Since the first statement mentions only a reason for
reconsidering
Murdock, since the second offers support on
either analysis, and since neither refers to any "alternative
rational[e]" for decision,
ante, at 680, the majority's
evidence for its reinterpretation of
Murphy seems rather
skimpy.
Now consider the reasons for believing that
Murphy rests
upon a different rationale-a rationale that, by focusing upon the
basic nature and history of the underlying right, rejects
Murdock's "same sovereign" rule. First,
Murphy holds
that the "constitutional privilege" itself, not that privilege
together with principles of federalism, "protects ... a federal
706
witness against incrimination under state ... law."
Murphy,
supra, at 78. Second, it says explicitly that it "reject[s]"
the
Murdock rule, not because of considerations of
federalism arising out of
Malloy, but because it is
"unsupported by history or policy" and represents a "deviation"
from a "correct ... construction" of the privilege in light of its
"history, policies and purposes."
Murphy, supra, at 77.
Third, about half of the opinion consists of an effort to
demonstrate that the privilege, as understood by the English courts
and by American courts prior to
Murdock, protected
individuals from compelled testimony in the face of a realistic
threat of prosecution by
any sovereign, not simply by the
same sovereign that compelled the testimony. See
Murphy, 378
U. S., at 58-70. Fourth, the rest of the Court's analysis consists
of a discussion of the purposes of the privilege, which, in the
Court's view, lead to a similar conclusion. See id., at 55-56.
Fifth, the Court explicitly rejects the analysis of commentators
who argued for a "same sovereign" rule on the ground that their
understanding of the privilege's purposes was incomplete. See id.,
at 56-57, n. 5 (rejecting 8 J. Wigmore, Evidence §2258, p. 345
(McNaughton rev. 1961)). Sixth, the Court nowhere describes its
rationale in "silver platter" or similar terms that could lead one
to conclude that its rule is prophylactic, enforcement based, or
rests upon any rationale other than that the privilege is not
limited to protection against prosecution by the same jurisdiction
that compels the testimony. Cf. 378 U. S., at 80-81 (Harlan, J.,
concurring in judgment).
Consequently, I believe one must read
Murphy as standing
for the proposition that the privilege includes protection against
being compelled to testify by the Federal Government where that
testimony might be used in a criminal prosecution conducted by
another sovereign. And the question the Court must consequently
face is whether we should reject the rationale of that case when we
answer the ques-
707
tion presented here. In other words, we must ask not, "what did
Murphy hold," but "was
Murphy right?"
B
Since
Murphy is prevailing law, the majority bears the
burden of showing that
Murphy is wrong; and the majority
says that
Murphy's reasoning is "fatally flawed" and legally
"unsound."
Ante, at 687-688. But it is not.
Murphy's
reasoning finds in
Malloy's holding (that the privilege
binds the States) a need to reexamine the "same sovereign" rule,
first set forth in the earlier case of
Murdock. Without
reexamination,
Murdock's rule would have permitted State and
Federal Governments each to have compelled testimony for use by the
other.
Murphy's reasoning then finds the "same sovereign"
rule unsound as a matter of history and of the basic purposes of
the privilege.
Murphy's use of legal history is traditional. It notes
that
Murdock rested its own conclusion upon earlier English
and American cases. It reads the language of those cases in light
of the reasons that underlie it. It says that, so read, those cases
did not stand for a "same sovereign" rule, but suggested the
contrary. And it concludes that
Murdock's legal pedigree is
suspicious or illegitimate. In a word,
Murphy examines
Murdock's historical pedigree very much the way that the
majority today analyzes that of
Murphy. The difference,
however, is that
Murphy makes a better case for overturning
its predecessor than does the majority.
I can reiterate the essence of
Murphy's analysis,
amending it to fit the present case, roughly as follows:
1. Murdock thought that English law embodied a "same
sovereign" rule, but it did not. Two early English cases, one
decided in 1749 and the other in 1750, held that the privilege
applied even though the feared prosecution was, in the one case, in
Calcutta, and in the other, by ecclesiastical authorities. East
India Co. v.
708
Campbell, 1 Yes. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749);
Brownsword v.
Edwards, 2 Yes. sen. 243, 28 Eng. Rep.
157 (Ch. 1750). Those cases said nothing about whether or not the
law of Calcutta, church law, and English law all emanate from a
single sovereign. But
Murdock had cited a famous later
English case,
King of Two Sicilies v.
Willcox, 1 Sim.
(N. S.) 301, 61 Eng. Rep. 116 (Ch. 1851), as standing for the "same
sovereign" principle.
It is true that one of the English judges in that case, Lord
Cranworth, said that the privilege involves only "matters [made]
penal by [English] ... law."
Id., at 329, 61 Eng. Rep., at
128. But Lord Cranworth immediately qualified that conclusion by
restating the conclusion in terms of its rationale, namely, that
the privilege applies "to matters as to which, if disclosed, the
Judge would be able to say, as matter of law, whether it could or
could not entail penal consequences."
Ibid. And, 16 years
later, the English courts sustained a claim of privilege involving
a threatened forfeiture in America.
United States of America
v.
McRae, 3 L. R. Ch. 79 (1867). In doing so, the
McRae court said both that Lord Cranworth's statement in
King of the Two Sicilies "la[id] down ... a proposition"
that was "broad[er]" than necessary to "support the judgment," and
that the true reason the privilege had not applied in the earlier
case was because the judge did not "know ... with certainty ... the
[foreign law, hence] whether the acts ... had rendered [the
defendants] amenable to punishment" and "it was doubtful whether
the Defendants would ever be within the reach of a prosecution, and
their being so depended on their voluntary return to [Sicily]."
United States of America v.
McRae, supra, at
85,87.
Thus, the true English rule as of the time of
Murdock,
insofar as any of these cases reveal that rule, was not a "same
sovereign" rule, but a rule that the privilege did not apply to
prosecutions by another sovereign
where
709
the danger of any such prosecution was speculative or
insubstantial. Cf. Queen v. Boyes, 1 B. & S.
311, 330, 121 Eng. Rep. 730, 738 (Q. B. 1861) ("[T]he danger to be
apprehended must be real and appreciable ... not a danger of an
imaginary and unsubstantial character").
Where is
Murphy's error?
2. Murdock thought that earlier American cases required a
"same sovereign" rule, but they did not. To the contrary: Chief
Justice Marshall, in United States v. Saline Bank of
Va., 1 Pet. 100 (1828), wrote that "a party is not bound to
make any discovery which would expose him to penalties."
Id., at 104. Justice Holmes later cited this case as
authority for the proposition that the Fifth Amendment privilege
"exonerated" a federal witness "from [making] disclosures which
would have exposed him to the penalties of the state law."
BaUmann v. Fagin, 200 U. S. 186, 195
(1906). Lower federal courts, consistent with the English rule, had
held that a witness could refuse to answer questions based on the
danger of incrimination in another jurisdiction. See, e. g., In
re Hess, 134 F.1d
9, 112 (ED Pa. 1905); In re Graham, 10 F. Cas. 913, 914
(No. 5,659) (SDNY 1876). True, the Court had written in dicta that
"[w]e think the legal immunity is in regard to a prosecution in the
same jurisdiction, and when that is fully given it is enough."
Jack v. Kansas, 199 U. S. 372, 382
(1905). But that unexplained dicta, which a later case linked to a
(misunderstood) English rule, see Hale v. Henkel,
201 U. S. 43,
68-69 (1906), provides an insufficient historical basis for
Murdock's summary conclusion, particularly since the Court,
immediately prior to Murdock, had indicated that the
question remained open. See United States ex rel. Vajtauer
v. Commissioner of Immigration, 273 U. S. 103 (1927)
(reserving question; citing Saline Bank and BaUmann
v. Fagin).
710
Again, where is
Murphy's error?
Stated in this minimal way,
Murphy's historical analysis
is difficult to attack. One can, of course, always point to special
features of a case and thereby distinguish it. In respect to the
mid-18th-century English cases, one can point out that Calcutta and
the church may not have been completely separate "sovereigns."
Ante, at 685. And
Saline Bank might have involved
application by the federal court of a state law that, without the
help of the Fifth Amendment, protected a party from
self-incrimination. But see
Saline Bank, supra, at 103
(citing Virginia privilege statute which, by its terms, applied to
suit by the
state "Attorney General" in the
state
"Superior Court of Chancery for the district of Richmond" for
recovery of a bank's capital stock "in behalf of the
Commonwealth"). But this kind of criticism is beside the point. The
English judges made no point of the former. See
ante, at 685
(statements about the privilege in these cases were "unqualified").
It does not denigrate their learning to suggest that they did not
articulate the precise sovereigntyrelated status of ecclesiastical
courts or of Calcutta's criminal law in 1749. Nor did Justice
Holmes make any point of the latter. See
BaUmann v.
Fagin, supra, at 195. As for the suggestion that it is
illegitimate to consider the later English authorities in
construing the privilege, see
ante, at 687, one would think
that, on this view,
Murdock is at least as vulnerable as
Murphy.
Most importantly, neither the majority today, nor the
authorities it cites, see
ante, at 688-689, n. 11, shows
that the key historical points upon which
Murphy relied are
clearly wrong. At worst,
Murphy represents one possible
reading of a history that is itself unclear.
Murphy's main
criticisms of
Murdock are reasonable ones. Its reading of
earlier cases, insofar as they were relevant to its criticism of
Murdock, was plausible then, see Grant, Federalism and
SelfIncrimination, 4 UCLA L. Rev. 549, 562 (1957)
(Murdock
"illustrates the danger of copying one's precedents directly
711
from the brief of counsel"); and it is plausible now. That
minimalist conclusion is sufficient for present purposes. Even if
Murdock's 3-sentence, and
Murphy's 20-page,
historical analyses were equally plausible, we would need something
more to abandon
Murphy, for it is the most recent, and
thereby governing, precedent.
Nor can I find any other reason for rejecting
Murphy and,
thereby, resurrecting
Murdock. The Fifth Amendment's
language permits
Murphy's construction, for it says "any
criminal case." The history of the Amendment's enactment simply
does not answer the question about whether or not it applied where
there is a substantial danger of prosecution in another
jurisdiction. See
United States v.
Gecas, 120 F.3d
1419, 1435 (CAll 1997) (en bane) (Fifth Amendment privilege
"has virtually no legislative history"); Moglen, Taking the Fifth:
Reconsidering the Origins of the Constitutional Privilege Against
Self-Incrimination, 92 Mich. L. Rev. 1086, 1123 (1994) (Fifth
Amendment's legislative history "adds little to our understanding
of the history of the privilege"). It is possible that the
language, "in any criminal case," was aimed at limiting protection
to compelled testimony against
penal interests, a reading
consistent with the Court's contemporary understanding of the
Clause. See,
e. g., United States v.
Ward, 448 U. S. 242, 248-255
(1980) (rejecting claim to privilege based on fear of civil
penalty, in part, because Clause "is expressly limited to 'any
criminal case' "); 5 The Founders' Constitution 262 (P. Kurland
& R. Lerner eds. 1987) (indicating that phrase "in any criminal
case" was proposed by Representative Lawrence to ensure that the
Clause was not "in some degree contrary to laws passed"). And it is
also possible that the language was intended to limit the
proceedings in which the privilege could be
claimed to
criminal cases, which understanding the Court rejected long ago.
See
McCarthy v.
Arndstein, 266 U. S. 34, 40 (1924)
(The privilege "applies alike to civil and criminal proceedings,
wherever the answer might tend to subject to criminal responsi-
712
bility him who gives it"). Neither of these readings is any
more speculative, as a textual or historical matter, than
reading the Clause as the majority does, against its text, to
restrict the universe of feared prosecutions
upon which
basis the privilege may be asserted.
What is more, there is no suggestion that
Murphy's rule,
applied to state and federal prosecutions, "has proven to be
intolerable simply in defying practical workability."
Planned
Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, 854 (1992)
(citing
Swift &
Co. v.
Wickham, 382 U. S. 111, 116
(1965)). Nor have the facts, or related principles of law,
subsequently changed so much "as to have robbed the old rule of
significant application or justification." 505 U. S., at 855
(citing
Patterson v.
McLean Credit Union, 491 U. S. 164, 173-174
(1989), and
Burnet v.
Coronado Oil &
Gas Co.,
285 U. S. 393, 412 (1932) (Brandeis, J., dissenting)). Indeed,
it was the
Murdock rule's legitimacy that, prior to
Murphy, consistently divided the Court. See,
e. g.,
Irvine v.
California, 347 U. S. 128, 139-142
(1954) (Black, J., joined by Douglas, J., dissenting) ("I cannot
agree that the [Fifth] Amendment's guarantee against
self-incrimination testimony can be spirited away by the ingenious
contrivance of using federally extorted confessions to convict of
state crimes and vice versa");
Feldman v.
United
States, 322 U. S.
487, 494-503 (1944) (Black, J., joined by Douglas and Rutledge,
JJ., dissenting).
The conclusion that I draw is that the rationale established
through
Murphy's precedent governs. That rationale
interprets the privilege as applicable at the least where a person
faces a substantial threat of prosecution in another jurisdiction.
And that reading of the privilege favors Balsys here.
II
Precedent aside, I still disagree with the Court's conclusion.
As
Murphy said, and as the Second Circuit reiterated, the
Fifth Amendment reflects not one, but several different
713
purposes. 378 U. S., at 55;
119 F.3d
122, 129 (1997). And whatever the disagreement about the
relative weight to be given each of those purposes or their
historical origins, I believe that these purposes argue in favor of
the Second Circuit's interpretation. Namely, an interpretation that
finds the Fifth Amendment privilege applicable where the threat of
a foreign prosecution is "real and substantial," as it is here. See
United States of America v.
McRae, 3 L. R. Ch., at
85-87 (distinguishing
King of the Two Sicilies v.
Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116 (Ch. 1851), on
this ground); cf.
Queen v.
Boyes, 1 B. & S., at
330, 121 Eng. Rep., at 738.
A
This Court has often found, for example, that the privilege
recognizes the unseemliness, the insult to human dignity, created
when a person must convict himself out of his own mouth. "At its
core, the privilege reflects our fierce 'unwillingness to subject
those suspected of crime to the cruel [choice] of self-accusation,
perjury or contempt.'"
Pennsylvania v.
Muniz,
496 U. S. 582,
596 (1990) (quoting
Doe v.
United States, 487 U. S. 201, 212
(1988));
South Dakota v.
Neville, 459 U. S. 553, 563
(1983). The privilege can reflect this value, and help protect
against this indignity, even if other considerations produce only
partial protection-protection that can be overcome by other needs.
Cf. MacNair, Early Development of the Privilege Against
SelfIncrimination, 10 Oxford J. Legal Studies 66, 70 (1990) (early
ecclesiastical procedure recognized privilege until an accusation
was made that person had committed an offense);
ante, at 692
(observing that the "protection of personal testimonial
inviolability" is not a "reliable guid[e]" to the "actual scope of
protection under the Clause"). And that value is no less at stake
where a foreign, but not a domestic, prosecution is at issue.
This Court has also said that the privilege serves to protect
personal privacy, by discouraging prosecution for crimes
714
of thought. See
Muniz, supra, at 595-596 (describing
English Star Chamber "wherein suspects were forced to choose
between revealing incriminating private thoughts and forsaking
their oath by committing perjury");
United States v.
Nobles, 422 U.
S. 225, 233 (1975) ("The Fifth Amendment privilege ... protects
'a private inner sanctum of individual feeling and thought and
proscribes state intrusion to extract self-condemnation'" (quoting
Couch v.
United States, 409 U. S. 322, 327 (1973))).
Indeed, some have argued that the Puritans championed the privilege
because, had the 17thcentury state questioned them about their
beliefs, they would have had to answer truthfully and thus suffer
condemnation. See L. Levy, Origins of the Fifth Amendment 134
(1968) ("If [a Puritan] took the oath and lied, he committed the
unpardonable and cardinal sin of perjury which was simply not an
option for a religious man"). This consideration may prove less
important today domestically, for the First Amendment protects
against the prosecution of thought crime. But that fact also
provides no reason for denying protection where the prosecution is
foreign.
The Court has said that the privilege reflects, too, "our fear
that self-incriminating statements will be elicited by inhumane
treatment and abuses."
Murphy, 378 U. S., at 55. This
concern with governmental "overreaching" would appear implicated as
much when the foreseen prosecution is by another country as when it
is by another domestic jurisdiction. Indeed, the analogy to
Murphy's observation about "cooperative federalism," in
which State and Federal Governments wage "a united front against
many types of criminal activity," id., at 56, is a powerful one.
That is because, in the 30 years since
Murphy, the United
States has dramatically increased its level of cooperation with
foreign governments to combat crime. See generally E. N adelman,
Cops Across Borders: The Internationalization of U. S. Criminal Law
Enforcement (1993); Bassiouni, Policy Considerations on Inter-State
Cooperation in Criminal Matters, 4 Pace Y. B.
715
Int'l L. 123 (1992); Zagaris, International Criminal and
Enforcement Cooperation in the Americas in the Wake of Integration,
3 Sw. J. L. & Trade Am. 1 (1996). The United States has entered
into some 20 "mutual legal assistance treaties" through which it
may develop and share evidence with foreign governments in order to
facilitate criminal prosecutions abroad, see New MLAT Treaties
Increase DOJ's Reach, 4 No.7 DOJ Alert 7 (Apr. 18, 1994) (listing
and discussing treaties); it has signed more than 50 new
extradition agreements, see 18 U. S. C. § 3181 (1994 ed., Supp. II)
(listing extradition treaties ratified since 1960); Nadelman, Cops
Across Borders, at 489-502 (same); it has increased by an order of
magnitude the number of law enforcement offices and personnel
located abroad, see id., at 479-486 (cataloging growth in
foreign-based law enforcement personnel since 1965); and it has
established a special office" 'for the purpose of centralizing and
giving greater emphasis and visibility to [the Justice
Department's] prosecutorial service functions in the international
arena,'" which has led to a "dramatic increase in the number of
extraditions" and an "even greater growth in the numbers of
requests for evidence in criminal cases" since the 1970's, id., at
402 (discussing DOJ's Office of International Affairs (alterations
omitted)).
Indeed, the United States has a significant stake in the foreign
prosecution at issue here. Congress has passed a deportation law
targeted at suspected Nazi war criminals. See 8 U. S. C. §
1182(a)(3)(E). The Justice Department has established an agency
whose mandate includes the assistance of foreign governments in the
prosecution of those deported. See App. 15-17 (Order No. 851-79,
establishing DOJ's Office of Special Investigations). And the
United States has agreed with Lithuania (where Balsys may stand
trial) "to cooperate in prosecution of persons who are alleged to
have committed war crimes ... [and] to provide ... legal assistance
concerning [such] prosecution[s]." Memorandum of Understanding
Between United States Department of Jus-
716
tice and Office of Procurator General of the Republic of
Lithuania Concerning Cooperation in the Pursuit of War Criminals,
Aug. 3, 1992, App. in No. 96-6144 (CA2), p. 395. As the Second
Circuit reasoned, since the Federal Government now has a stake in
many foreign prosecutions akin to its stake in state prosecutions,
a stake illustrated by this case, the privilege's purpose of
preventing governmental overreaching is served by recognizing the
privilege in the former class of cases, just as it is served in the
cases of "cooperative federalism" identified by
Murphy.
Indeed, experience suggests that the possibility of governmental
abuses in cases like this one-where the United States has an
admittedly keen interest in the later, foreign prosecution-is not
totally speculative. See,
e. g., Demjanjuk v.
Petrovsky, 10 F.3d
338 (CA61993).
An additional purpose served by the privilege is "our preference
for an accusatorial rather than an inquisitorial system of criminal
justice."
Murphy, supra, at 55. Even if this systemic value
speaks to "domestic arrangements" only,
ante, at 690, the
investigation of crime is as much a part of our "system" of
criminal justice as is any later criminal prosecution. Reflecting
this fact, the Court has said that the Fifth Amendment affords
individuals protection during the investigation, as well as the
trial, of a crime. See Mi
randa v.
Arizona, 384 U. S. 436 (1966). And
the importance we place in our system of criminal investigation,
and the distaste we have for its alternatives, would stand
diminished if an accused were denied the Fifth Amendment's
protections because the criminal case against him, though built in
this country by our Government, was ultimately to be prosecuted in
another. This is true regardless of whether the "Bill of Rights was
intended to have any effect on the conduct of foreign proceedings."
Ante, at 701 (STEVENS, J., concurring). The Fifth Amendment
undeniably "prescribes a rule of conduct generally to be followed
by our Nation's official-
717
dom," ibid. (GINSBURG, J., dissenting), and it is that conduct,
not a foreign proceeding, that is at issue here.
B
If the policies and purposes that this Court has said underlie
the Fifth Amendment-respect for individual dignity and privacy,
prevention of governmental overreaching, preservation of an
accusatorial system of criminal justice-would all be well served by
applying the privilege when a witness legitimately fears foreign
prosecution, then what reason could there be for reinterpreting the
privilege so as not to recognize it here?
Two reasons have been suggested: First, one might see a
government's compulsion of testimony followed by its own use of
that testimony in a criminal prosecution as somewhat more unfair
than compulsion by one government and use by another. And one might
also find the States and the Federal Government so closely
interconnected that the unfairness is further diminished where the
prosecuting sovereign is a foreign country.
But this factor, in my view, cannot be determinative. For one
thing, this issue of fairness is a matter of degree, not kind. For
another, changes in transportation and communication have made
relationships among nations ever closer, to the point where
cooperation among international prosecutors and police forces may
be as great today as among the States (or between the States and
the Federal Government) a half century ago. See
supra, at
714-715 (discussing rise in international cooperation). Finally,
this Court's cases suggest that the remaining
considerations-particularly the inherent indignity and cruelty to
the individual in compelling selfincrimination-bulk larger in terms
of the basic values that the Fifth Amendment reflects than does
this single, partial, fairness consideration. See
supra, at
712-713 (citing cases). I cannot agree that this particular
feature-the fact that
718
prosecution by a different sovereign seems not quite as unfair
as prosecution by the same sovereign-could warrant denying the
privilege's application.
The second consideration is practical. The majority, as well as
the Government, fear that application of the privilege might
unreasonably interfere with the work of law enforcement. See
ante, at 697-698; Brief for United States 30-36. But in my
view, that fear is overstated. After all, "foreign application" of
the privilege would matter only in a case where an individual could
not be prosecuted domestically but the threat of foreign
prosecution is substantial. Cf.
Zicarelli, 406 U. S., at
478-481 (declining to reach privilege claim because witness did not
face "real danger" of foreign prosecution). The Second Circuit
points out that there have only been a handful of such cases. 119
F. 3d, at 135 (finding only six cases in the 25 years since
Zicarelli). That is because relatively few witnesses face
deportation or extradition, and a witness who will not "'be forced
to enter a country disposed to prosecute him,'" 119 F. 3d, at 135
(quoting
United States v.
Gecas, 50 F.3d
1549, 1560
(CA111995), cannot make the showing of "real
and substantial" fear that
Zicarelli would require.
Moreover, even where a substantial likelihood of foreign
prosecution can be shown, the Government would only be deprived of
testimony that relates to the foreign crime; the witness would not
be entitled to claim a general silence. See
Hoffman v.
United States, 341 U. S. 479, 486 (1951)
(witness may only refuse to answer questions that might "in
themselves support a conviction" or "furnish a link in the chain of
evidence" for such crime). And nothing would prevent the
Government, in a civil proceeding, from arguing that an adverse
inference should be drawn from the witnesses' silence on particular
questions, see
Baxter v.
Palmigiano, 425 U. S. 308, 318
(1976), or from supporting that inference with evidence from other,
nonprivileged sources. Thus, without any adjustment in practice, it
would seem that
719
the Government would lose little information, and even fewer
cases, were the privilege recognized here.
In those rare instances where the need for testimony was
sufficiently great, a grant of
de facto "immunity" remains a
possibility. The Government need only take steps sufficient to make
the threat of foreign prosecution insubstantial. Thus, a promise by
the United States that deportation will not take place, or that
deportation to a different country will ensue, would seem
sufficient. A further promise by the foreign nation that
prosecution will not take place, or will not make use of the
elicited testimony, will obviate the need even for such a
deportation promise. And were a foreign sovereign to later seek
extradition of the witness, the Government, under existing law,
might retain the discretion to decline such a request. See 18 U. S.
C. § 3186 ("Secretary of State may order" extraditable person
"delivered to ... foreign government"); § 3196 (giving Secretary of
State discretion whether to extradite United States citizens
provided treaty does not obligate her to do so).
I do not want to minimize the potential difficulties inherent in
providing this kind of "immunity." It might require a change in
domestic law, or in a given case, an adjustment in an understanding
reached with a foreign government. In unusual circumstances, as
JUSTICE STEVENS recognizes, see
ante, at 701, it might
require adjusting the legal rules that express the privilege in
order to prevent a foreign government's efforts to stop its
citizens from testifying in American courts. But I do not see these
difficulties as creating overwhelming obstacles to the legitimate
application of the privilege in instances such as the one present
here. Nor do I see these difficulties as significantly greater than
those that inhere in the ordinary grant of immunity, which also
requires legislation, and which also can create friction among
competing jurisdictions. At worst, granting
de facto
"immunity" in this type of case would mean more potentially
deportable criminal aliens will remain in the United States, just
as to-
720
day's immunity means more potentially imprisonable citizens
remain at liberty. This is a price that the Amendment extracts
where government wishes to compel incriminating testimony; and it
is difficult to see why that price should not be paid where there
is a real threat of prosecution, but it is foreign.
***
In sum, I see no reason why the Court should resurrect the pale
shadow of
Murdock's "same sovereign" rule, a rule that
Murphy demonstrated was without strong historical foundation
and that would serve no more valid a purpose in to day's world than
it did during
Murphy's time.
Murphy supports
recognizing the privilege where there is a real and substantial
threat of prosecution by a foreign government. Balsys is among the
few to have satisfied this threshold. The basic values that this
Court has said underlie the Fifth Amendment's protections are each
diminished if the privilege may not be claimed here. And
surmountable practical concerns should not stand in the way of
constitutional principle.
For these and related reasons elaborated by the Second Circuit,
I respectfully dissent.
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