2.1 - II. The Fifth Amendment And Immunity—Generally

• Jurisdiction: New York

II. THE FIFTH AMENDMENT AND IMMUNITY—GENERALLY

Both federal and state constitutions provide that no person “shall be compelled in any criminal case to be a witness against himself.”¹²¹ Under virtually all circumstances, the speculative, the hypothetical and the inconsequential are without the ambit of the Fifth Amendment. “One’s identity is, by definition, unique; yet, it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.”¹²² “Compulsion” does not equate with the pressures created by the realities of one’s situation.¹²³ Nor does compulsion equal de minimis collateral harms attending assertion of the privilege.¹²⁴ (“The involuntary witness, when forced into the role of an informer, does not, however, incriminate himself. Anglo-American law protect[s] only against compulsory self-incrimination, not against the incrimination of others.”¹²⁵) “The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.”¹²⁶

Under minimum federal constitutional standards, in order to supplant the privilege and compel a witness to testify before a grand jury, the witness must receive “use” and “derivative use”¹²⁷ immunity vis-à-vis the compelled testimony. The compelled testimony or physical evidence itself may not be used against the witness in a criminal case; nor may the compelled testimony or physical evidence be derivatively used as the source of a lead¹²⁸ or clue or link in the chain of testimony which would convict an individual of crime. (It has been held that “[a] grand jury is no more entitled to use a witness’s immunized testimony against him to reach an indictment than is a trial jury permitted to use such testimony to reach its verdict.”¹²⁹)

“Transactional immunity” is not required. The Fifth Amendment does not mandate that amnesty for the criminal transaction about which the witness testifies or produces evidence be conferred to compel his or her testimony or production. If the prosecution can prove that the testimony and physical evidence it proposes to use against a previously immunized defendant is derived from a legitimate source, wholly independent of the immunized defendant’s compelled testimony or physical evidence, it may use that evidence to convict the immunized witness-defendant of the very crime about which he testified or produced evidence.¹³⁰ (This sort of proof—which must be by clear and convincing evidence—is a virtual impossibility where the grand jury that heard the immunized testimony or received the immunized physical evidence is the same one that returned the indictment against a defendant.¹³¹)

In order to preserve the immunity statutes of the 50 states and prevent an immunized witness’s testimony or document production from being “silver plattered” between state and federal governments, the Supreme Court has ruled that immunized testimony may not be used or derivatively used in state or federal courts no matter which jurisdiction initially confers immunity. This rule leaves the witness and any other non-immunizing jurisdiction in substantially the same position in which they would have been absent conferral of immunity by the immunizing jurisdiction.¹³² In order to prevent the federal or state government from “silver plattering” immunized testimony—one to another after immunizing a witness—federal or state prosecutors, as the case may be, have an affirmative duty not merely to show that their evidence against the immunized witness-turned-defendant is not tainted by his prior immunized testimony but to prove that the evidence they propose to use against him is derived from a legitimate source wholly independent of the compelled testimony.¹³³

As to prosecution by foreign governments, one viewpoint was that the immunity conferred, absent a particularized showing, need not protect a witness from the possible use or derivative use of his testimony or evidence in a future prosecution of him by a foreign country. The Fifth Amendment protects against real and substantial dangers, not speculative possibilities. For quite some time, the ultimate question was not finally and completely decided by the Supreme Court or circuit courts of appeal.¹³⁴ The Fourth Circuit, in a case where the potential for foreign prosecution was real, substantial and particularly shown, stated:

Just as comity among nations requires the United States to respect the law enforcement processes of other nations, our own national sovereignty would be compromised if our system of criminal justice were made to depend on the actions of [a] foreign government beyond our control. It would be intolerable to require the United States to forgo evidence legitimately within its reach solely because a foreign power could deploy this evidence in a fashion not permitted within this country. Our conclusion in this respect is reinforced by the authorities that hold, as a matter of domestic law, that the Fifth Amendment privilege does not protect the witness against all adverse uses of his compelled testimony but only those adverse uses specifically proscribed by the Fifth Amendment. ¹³⁵

The Tenth Circuit agreed.¹³⁶ The Eleventh Circuit also agreed.¹³⁷ Curiously equating the Fifth Amendment’s “purposes”—as they liberally saw them—with what it protects, the Second Circuit allowed an “extraterritorial” assertion of the Fifth Amendment which would allow an Eichmann to successfully plead the Fifth in a deportation proceeding.¹³⁸ The Supreme Court reversed and is here quoted at length.

We hold that concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause. ¹³⁹

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The parties do not dispute that the Government

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