DENYING FIFTH AMENDMENT PROTECTIONS TO WITNESSES FACING FOREIGN PROSECUTIONS: SELF-INCRIMINATION DISCRIMINATION?

• Author: Swinger, Steven J.

United States v. Balsys, 118 S. Ct. 2218 (1998).

1. INTRODUCTION

   In United States v. Balsys,(1) the Supreme Court held that a witness could not invoke the Fifth Amendment privilege against compelled self-incrimination during a Department of Justice inquiry into his activities during World War II when he reasonably feared that his testimony would incriminate him under the laws of a foreign country.(2)

   By a seven to two vote, the Court held that the Fifth Amendment privilege against self-incrimination applied only when either the sovereign seeking to compel the witness's testimony was the same sovereign that would use the testimony against the witness, or when the compelling and the using sovereigns were both bound by the Fifth Amendment.(3) In so holding, the majority interpreted this "same sovereign" rule as being consistent with the relevant precedents, most notably with Murphy v. Waterfront Commission.(4)

   This Note argues that the majority misread Murphy and other precedents, and that its holding fails to recognize some of the essential policies and purposes behind the privilege. As Murphy noted, the privilege seeks, among other things, to prevent the government from abusing its power in seeking to build a case against a defendant, and from forcing a witness into the "cruel trilemma" of having to choose between self-incrimination, perjury, and contempt.(5) Neither of these policy goals were served by refusing to allow Balsys to invoke the privilege. The United States government has a strong incentive to abuse its power in building a case against defendants like Balsys due to its extensive cooperation with foreign governments in the prosecution of war criminals.(6) In addition, a witness faces the "cruel trilemma" at the moment that he is forced to choose between perjury, self-incrimination, and contempt, regardless of where his prosecution will ultimately take place.(7) Therefore, the policies behind the Fifth Amendment privilege suggest that the majority erred in not allowing Balsys to invoke the privilege.

   The majority contends that allowing Balsys to invoke the privilege would disrupt the balance between governmental and private interests which is achieved when the government is allowed to exchange a witness's right to silence with a grant of immunity.(8) Such an exchange would be impossible when a witness faces foreign prosecution, since the United States cannot enforce its grant of domestic immunity abroad.(9)

   However, this Note argues that the United States could overcome this problem in many cases by granting a kind of constructive immunity to witnesses who fear foreign prosecution. The United States could do this by taking certain steps to ensure that neither the testimony nor its fruits can be used against the witness in a foreign prosecution.(10) In addition, this Note argues that where the United States government cannot grant a witness such constructive immunity, it lacks the authority under the Constitution to compel the witness's testimony.

2. BACKGROUND

   1. EARLY INTERPRETATION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

      The Fifth Amendment to the Constitution reads, in relevant part: "no person ... shall be compelled in any criminal case to be a witness against himself..."(11) There is virtually no legislative history of the Amendment, so in order to determine whether the privilege against self-incrimination protects a witness from providing testimony which might be used against him in a foreign prosecution, we must turn to judicial interpretation of the Amendment.

      1. Applying the Privilege in the Interfederal Context

         Before United States v. Balsys,(12) the Supreme Court had never directly addressed the question of the applicability of the Fifth Amendment privilege to cases involving fear of foreign prosecution. Over the past two centuries, however, it has addressed an analogous issue: whether "one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another [such] jurisdiction."(13)

         The Court first addressed this issue in United States v. Saline Bank of Virginia.(14) In Saline Bank, the federal government, seeking to recover certain bank deposits, brought suit in federal court against the bank and a number of its stockholders.(15) The Court held that the defendants could refuse to answer questions posed to them by the United States in federal court, "where the defendants claimed that their responses would result in incrimination under the laws of Virginia."(16) The Court noted that "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."(17)

         There has been considerable controversy over the exact meaning and scope of the Saline Bank holding. At various times, the Supreme Court has noted that Saline Bank was concerned strictly with the interpretation and administration of a self-incrimination clause in a Virginia statute, and did not mention the Fifth Amendment.(18) At other times, however, the Court has interpreted Saline Bank more broadly, reading it as applying the Fifth Amendment privilege against self-incrimination to bar the compulsion of a witness's testimony by one jurisdiction in the federal structure, when the testimony sought would incriminate the witness in another such jurisdiction.(19)

         In Ballmann v. Fagin, the Court adopted the latter, more broad reading of Saline Bank, holding that a witness could not be compelled to provide testimony in a federal criminal investigation which would incriminate him under state or federal law.(20) Ballmann involved a federal grand jury investigation into the criminal liability of a national bank employee for the disappearance of cash from the bank vaults.(21) When the grand jury ordered the employee to produce a certain cash book or to answer questions designed to prove his possession or control of the cash book, he refused to do so on the ground that either would incriminate him in an Ohio state proceeding which had already been brought against him.(22) Citing Saline Bank, the Court held that the employee could not lawfully be compelled to produce the incriminating cash book or to acknowledge his possession of it, as he "was exonerated from disclosures which would have exposed him to the penalties of the state law."(23) The Court noted that the information contained in the cash book might be incriminating under federal law as well.(24) However, the employee did not raise this possibility in his invocation of the privilege against self-incrimination, and it was not the exclusive (or, arguably, even the primary) focus of the Court's holding.(25) The Court held that whether he was motivated to withhold his cash book for fear of federal or state prosecution, "we are of the opinion that Ballmann could not be required to produce his cash book if he set up that it would tend to incriminate him."(26)

         In Bram v. United States,(27) the Court addressed the question of whether the Fifth Amendment prevented the federal government from using a witness's self-incriminating testimony against him in a federal prosecution when the testimony was compelled by foreign authorities.(28) In Bram, the defendant was accused of murdering several people on the high seas. He was interrogated by Canadian authorities in Nova Scotia, who coerced his confession by stripping him of his clothes and telling him that he had already been implicated by a shipmate, and that it would be better for him to testify truthfully regarding his participation in the crime.(29) The Court held that, under the circumstances, the defendant's confession was non-voluntary and improperly coerced, and that the Fifth Amendment therefore prevented the federal government from using the confession as evidence against the defendant.(30) In reaching its holding, the Court focused upon the effect of the coercion on the voluntariness of the defendant's confession,(31) and not upon the jurisdiction wherein the coercion occurred.

      2. Immunity Statutes

         In the late nineteenth century, the Court established that the federal government may compel a witness to give self-incriminating testimony, notwithstanding the Fifth Amendment privilege, if it grants the witness an immunity from criminal prosecution based upon his testimony that is co-extensive with the protections guaranteed by the privilege.(32) In Counselman v. Hitchcock,(33) a federal grand jury called a corporate officer to testify regarding his company's alleged violation of federal laws governing interstate commerce.(34) A federal statute then in existence provided, in relevant part, that:

         no pleading of a party, nor any discovery or evidence obtained from a party by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture ...(35) The corporate officer refused to testify despite the existence of the immunity statute, however, claiming that the statute would not guarantee him the full range of protection against self-incrimination granted by the Fifth Amendment.(36) The Court ruled that an immunity statute can replace the Fifth Amendment privilege only if it provides a protection that has the "same extent in scope and effect" as the privilege itself, by providing a "complete protection from all of the perils against which the constitutional prohibition was designed to guard."(37) The Court concluded that in order to achieve this, an immunity statute must provide "absolute immunity against future prosecution for the offense to which the [compelled testimony] relates."(38) Reasoning that the statute in question would allow the witness to be prosecuted for the offense to which his testimony related, and that it would not prevent federal authorities from using his compelled...