Background[ edit ] 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 right. 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 so was not sufficient to supplant the privilege and compel their testimony.

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Arndstein, U. Saline Bank, 1 Pet. Gardner v. Broderick, U. 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 8 context of such offenses, 14 and their primary use has been to investigate such offenses. As Mr. Justice Frankfurter observed, speaking for the Court in Ullmann v. United States, U. In other words, petitioners assert that no immunity statute, however drawn, can afford a lawful basis for compelling incriminatory testimony. They ask us to reconsider and overrule Brown v. Walker, U.

United States, supra, decisions that uphold the constitutionality of immunity statutes. Brown v. Walker, supra. 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. McCarthy v.

In support of this contention, they rely on Counselman v. Hitchcock, U. He was consequently adjudged in contempt of court. The immunity statute under consideration does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition.

In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates. 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 be 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.

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. The Counselman statute, as construed by the Court, was plainly deficient in its failure to prohibit the use against the immunized witness of evidence derived from his compelled testimony.

Emphasis supplied. McCarthy, U. 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 from prosecution under the laws of New Jersey and New York.

They were adjudged in civil contempt, and that judgment was affirmed by the New Jersey Supreme Court. 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 testimony which could be used to convict him of a crime in another jurisdiction. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Government in investigating and prosecuting crime, the Federal Governments must be prohibited from making any such use of compelled testimony and its fruits.

The Court heretofore has not squarely confronted this question, 44 because post-Counselman immunity statutes reaching the Court either have followed the pattern of the Act in providing transactional immunity, 45 or have been found deficient for failure to prohibit the use of all evidence derived from compelled testimony.

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 of protection that the Constitution requires, and is all that the Constitution requires even against the jurisdiction compelling testimony by granting immunity.

We start from the premise, repeatedly affirmed by this Court, that an appropriately broad immunity grant is compatible with the Constitution. 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 privilege assures that 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 testiony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties.

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

The immunity therefore is coextensive with the privilege and suffices to supplant it. New York, U. In Brown v. Ullmann v. United States, supra, U. We held that the testimony in question could be compelled, but that the Federal Government would be barred from using any of the testimony, or its fruits, in a subsequent federal prosecution. Catena v. Elias, F. Concern over informal and undetected exchange of information is also correspondingly less when two different jurisdictions are involved.

The irrelevance of Murphy to such a situation was made clear in Albertson v. Subversive Activities Control Board, U.

Inasmuch as no interjurisdictional problems presented themselves, Murphy was not even cited. That is further proof that Murphy was not thought significantly to undercut Counselman. Marks, U. Burr, 25 F. Henkel, U. That is the true measure of the Self-Incrimination Clause.

New York, supra, U. The sole question presented to a court is whether the subsequent prosecution is related to the substance of the compelled testimony. Both witness and government know precisely where they stand. Respect for law is furthered when the individual knows his position and is not left suspicious that a later prosecution was actually the fruit of his compelled testimony.

For while the precise testimony that is compelled may not be used, leads from that testimony may be pursued and used to convict the witness. That is indeed one of the chief procedural guarantees in our accusatorial system. Government acts in an ignoble way when it stoops to the end which we authorize today. Hitchcock and hold that this attempt to dilute the Self-Incrimination Clause is unconstitutional.

I cannot believe the Fifth Amendment permits that result. See Piccirillo v. A grant of immunity may strip the witness of the right to refuse to testify, but only if it is broad enough to eliminate all possibility that the testimony will in fact operate to incriminate him. I assume, moreover, that in theory that test would be met by a complete ban on the use of the compelled testimony, including all derivative, use, however remote and indirect. But I cannot agree that a ban on use will in practice be total, if it remains open for the government to convict the witness on the basis of evidence derived from a legitimate independent source.

The Court asserts that the witness is adequately protected by a rule imposing on the government a heavy burden of proof if it would establish the independent character of evidence to be used against the witness. But in light of the inevitable uncertainties of the fact-finding process, see Speiser v.

Randall, U. That margin can be provided only by immunity from prosecution for the offenses to which the testimony relates, i. For the information relevant to the question of taint is iniquely within the knowledge of the prosecuting authorities. They alone are in a position to trace the chains of information and investigation that lead to the evidence to be used in a criminal prosecution. A witness who suspects that his compelled testimony was used to develop a lead will be hard pressed indeed to ferret out the evidence necessary to prove it.

And of course it is no answer to say he need not prove it, for though the Court puts the burden of proof on the government, the government will have no difficulty in meeting its burden by mere assertion if the witness produces no contrary evidence.

Second, even their good faith is not a sufficient safeguard. For the paths of information through the investigative bureaucracy may well be long and winding, and even a prosecutor acting in the best of faith cannot be certain that somewhere in the depths of his investigative apparatus, often including hundreds of employees, there was not some prohibited use of the compelled testimony.

Giglio v. The Court today sets out a loose net to trap tainted evidence and prevent its use against the witness, but it accepts an intolerably great risk that tainted evidence will in fact slip through that net.

The exclusionary rule of evidence that applies in that situation has nothing whatever to do with this case. Evidence obtained through a coercive interrogation, like evidence obtained through an illegal search, is excluded at trial because the Constitution prohibits such methods of gathering evidence. The exclusionary rules provide a partial and inadequate remedy to some victims of illegal police conduct, and a similarly partial and inadequate deterrent to police officers.

An immunity statute, on the other hand, is much more ambitious than any exclusionary rule. It does not merely attempt to provide a remedy for past police misconduct, which never should have occurred. An immunity statute operates in advance of the event, and it authorizes—even encourages interrogation that would otherwise be prohibited by the Fifth Amendment. An immunity statute thus differs from an exclusionary rule of evidence in at least two critical respects.

For when illegal police conduct has occurred, the exclusion of evidence does not purport to purge the conduct of its unconstitutional character. The constitutional violation remains, and may provide the basis for other relief, such as a civil action for damages see 42 U.


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

See more information Chapman v. California, U. Go to 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.



Arndstein, U. Saline Bank, 1 Pet. Gardner v. Broderick, U. 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.


Kastigar v. United States

Anticipating that the petitioners would assert their Fifth Amendment privilege, the government obtained an order from the District Court directing the petitioners to answer questions and produce evidence before the grand jury under a grant of immunity. The scope of immunity was based on the federal witness immunity statute, which stated: ". They appeared but refused to answer questions, asserting their privilege against self-incrimination. The court found them in contempt, a decision which was upheld by the Court of Appeals for the Ninth Circuit. Issue ".


406 U.S. 441 - Kastigar v. United States

External links In a decision Justices Brennan and Rehnquist took no part in the consideration of the case , the Court held that the government can overcome a claim of Fifth Amendment privilege by granting a witness "use and derivative use" immunity in exchange for his testimony. William Hubbs Rehnquist was an American lawyer and jurist who served on the Supreme Court of the United States for 33 years, first as an Associate Justice from to , and then as the 16th Chief Justice of the United States from until his death in Under this view of federalism, the court, for the first time since the s, struck down an act of Congress as exceeding its power under the Commerce Clause. Background 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.

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