Case opinion for US Supreme Court KASTIGAR v. UNITED STATES. Read the Court’s full decision on FindLaw. Kastigar cited his Fifth Amendment protection against self-incrimination in refusing to testify before a grand jury, even though prosecutors had. United States: The Immunity Standard Redefined,” The Catholic Lawyer: Vol. No. 4, Article The case to be discussed in this comment, Kastigar v. United.

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The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as provided by 18 U. Transactional immunity would afford broader protection than the Fifth Amendment privilege, and is not constitutionally required.

Kastigae a subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony. This case presents the question whether the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against compulsory self-incrimination, by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony.

Petitioners were subpoenaed to appear before a United States grand jury in the Central District of California on February 4, The Government believed that petitioners were likely to assert their Fifth Amendment privilege. Prior to the scheduled appearances, the Government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U.

Petitioners opposed issuance of the order, contending primarily that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination, and therefore was not sufficient to supplant the staets and compel their testimony.

The Uniited Court rejected this contention, and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity. Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury’s questions, notwithstanding the grant of immunity. The court found both in contempt, and committed them to the custody of the Attorney General until either they answered the grand jury’s questions or the term of the grand jury expired.

Appeals for the Ninth Circuit affirmed. United States, F. This Court granted kastigad to resolve the important question whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom “use and derivative use” immunityor whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates “transactional” immunity. The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence.

The first Congress recognized the testimonial duty in the Judiciary Act ofwhich provided for compulsory attendance of witnesses in the federal courts. Waterfront Comm’n, U. United Sttates, U. Such testimony constitutes one of the Government’s primary sources of information. But the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, [ Footnote 7 ] the most important of which is the Fifth Amendment privilege against compulsory self-incrimination.

The privilege reflects a complex of our fundamental values and aspirations, [ Footnote 8 ] and marks an important advance in the development of our liberty.

Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, [ Footnote 13 ] are not incompatible. Rather, they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.

Indeed, their origins were in the context of such offenses, [ Footnote 14 ]. Justice Frankfurter observed, speaking for the Court in Ullmann v.

Petitioners contend, first, that the Fifth Amendment’s privilege against compulsory self-incrimination, which is that “[n]o person. In other words, petitioners assert that no immunity stats, however drawn, can afford a lawful basis for compelling incriminatory testimony. They ask us to reconsider and overrule Brown v.

United States, supra, decisions that uphold the constitutionality of immunity statutes. Petitioners’ second contention is nuited the scope of immunity provided by the federal witness immunity statute, 18 U. The statute provides that, when a witness is compelled by district court order to testify over a claim of the privilege:. The constitutional inquiry, rooted in logic and history as well as in the decisions of this Court, is whether the immunity granted under this statute is coextensive with the scope of the privilege.


If, on the other hand, the immunity granted is not as comprehensive as the protection afforded by the privilege, petitioners were justified in refusing to answer, and the judgments of contempt must be vacated.

Petitioners draw a distinction between statutes that provide transactional immunity and those that provide, as does the statute before us, immunity from use and derivative use.

In support of this contention, they rely on Counselman v. The statute, a reenactment of the Immunity Act of[ Footnote 26 ] provided that no. Notwithstanding a grant of immunity and order to testify under the revised Act, the witness, asserting his privilege against compulsory self-incrimination, refused to testify before kastkgar federal grand jury.

Kastigar v. United States

He was consequently adjudged in contempt of court. This construction meant that the statute “could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him. Accordingly, under the principle that a grant of immunity cannot supplant the privilege, and is not sufficient to compel testimony over a claim of the privilege, unless the scope stats the grant of immunity is coextensive with the scope of the privilege, [ Footnote 30 ] the witness’ refusal to testify was held proper.

In uniteed course of its opinion, the Court made the following statement, on which petitioners heavily rely:. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute g against future prosecution for the offence to which the question relates.

Sixteen days after the Counselman decision, a new immunity bill was introduced by Senator Cullom, [ Footnote 31 ] who urged that enforcement of the Interstate Commerce Act would be impossible in the absence of an effective immunity statute. This transactional immunity statute became the basic form for the numerous federal immunity statutes [ Footnote 35 ] untilwhen, after reexamining applicable constitutional principles and the adequacy of existing law, Congress enacted the statute here under consideration.

Kastigar v. United States, 406 U.S. 441 (1972)

We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not kkastigar broader.

Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted.

Its sole concern is to afford protection against being “forced to give testimony leading to the infliction of penalties affixed to.

Kastigar v. United States

It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness. Our holding is consistent with the conceptual basis of Counselman.

The Counselman statute, as construed by the Court, was plainly deficient in its failure to. The Court repeatedly emphasized this deficiency, noting that the statute:. The basis of the Court’s decision was recognized in Ullmann v. See also Arndstein v. The broad language in Counselman relied upon by petitioners. The Murphy petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor. After refusing to answer certain questions on the ground that the answers might tend to incriminate them, petitioners were granted immunity.

They were adjudged in civil contempt, and that judgment was affirmed by the New Jersey Supreme Court. The issue before the Court in Murphy was whether New Jersey and New York could compel the witnesses, whom these States had immunized from prosecution under their laws, to give testimony that might then be used to convict them of a federal crime.

Since New Jersey and New York had not purported to confer immunity from federal prosecution, the Court was faced with the question what limitations the Fifth Amendment privilege imposed on the prosecutorial powers of the Federal Government, a nonimmunizing sovereign.

After undertaking an examination of the policies and purposes of the privilege, the Court overturned the rule that one jurisdiction within our federal structure may compel a witness to give kastigwr which could be used to convict him of a crime in another jurisdiction. Applying this principle to the state immunity legislation before it, the Court held the constitutional rule to be that:.

We conclude, moreover, that, in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.

The Court emphasized that this rule left the state witness and the Federal Government, against sgates the witness had immunity only from the use of the compelled testimony shates evidence derived therefrom, “in substantially the stwtes position as if the witness had claimed his privilege in the absence of a state grant of immunity.


It is true that, in Murphy, the Court was not presented with the precise question presented by this case, whether a jurisdiction seeking to compel testimony may do so by granting only use and derivative use immunity, for New Jersey and New York had granted petitioners transactional immunity. The Court heretofore has not.

Since the privilege is fully applicable and its scope is the same whether invoked in a state or in a federal jurisdiction, [ Footnote 47 ] the Murphy conclusion that a prohibition on use and derivative use secures a witness’ Fifth Amendment privilege against infringement by the Federal Government demonstrates that immunity from use and derivative use is coextensive with the scope of the privilege.

As the Murphy Court noted, immunity from kastiga and derivative use “leaves the witness and the Federal Government in substantially the same position. The Murphy Court was concerned solely with the danger of incrimination under federal law, and held that immunity from use and derivative use was sufficient to displace the danger. This protection coextensive with the privilege is the degree kasstigar protection that the Constitution requires, and is all that the Constitution requires even against the jurisdiction compelling testimony by granting immunity.

Although an analysis of statee decisions and the purpose of the Fifth Amendment privilege indicates that use and derivative use immunity is coextensive with the privilege, we must consider additional arguments advanced by petitioners against the sufficiency of such immunity. We start from the premise, repeatedly affirmed by this Court, that an appropriately broad immunity grant is compatible with the Constitution. Petitioners argue that use and derivative use immunity will not adequately protect a witness from various possible incriminating uses of the compelled testimony: It will be difficult, and perhaps impossible, the argument goes, to identify, by testimony or cross-examination, the subtle ways in which the compelled testimony may disadvantage a witness, especially in the jurisdiction granting the immunity.

The statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom:. This total prohibition on use provides a comprehensive safeguard, barring the use of compelled katsigar as an “investigatory lead,” [ Footnote 50 ] and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.

A person accorded this immunity under 18 U. As stated in Murphy: This burden of proof, which we reaffirm as appropriate, is not limited to a negation kastiggar taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

This is very substantial protection, [ Footnote 51 ] commensurate with that resulting from invoking the privilege itself. The privilege assures unied a citizen is not compelled to incriminate himself by his own testimony. It usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer.

This statute, which operates after a witness has given incriminatory testimony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties.

The statute, like unitdd Fifth Amendment, grants neither pardon nor amnesty. Both the statute and the Fifth Amendment allow the government to prosecute sstates evidence from legitimate independent sources.

The statutory proscription is analogous to the Fifth Amendment requirement in cases of coerced confessions.

Kastigar v. United States – Wikipedia

One raising a claim under this statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from. There can be no justification in reason or policy for holding that the Constitution requires an amnesty grant where, acting pursuant to statute and accompanying safeguards, testimony is compelled in exchange for immunity from use and derivative use when no such amnesty is required where the government, acting without colorable right, coerces a defendant into incriminating himself.

We conclude that the immunity provided by 18 U. The immunity therefore is coextensive with the privilege and suffices to supplant it. The judgment of the Court of Appeals for the Ninth Circuit accordingly is. For a concise history of testimonial compulsion prior to the adoption of our Constitution, see 8 J. Hansard, Parliamentary History of England See also Piemonte v. United States, supra, at U.