Counselman v. Hitchcock

Counselman v. Hitchcock, 142 U.S. 547 (1892), argued 9–10 Dec. 1891, decided 11 Jan. 1892 by vote of 9 to 0; Blatchford for the Court. In Counselman, the Court considered the constitutionality of a federal statute granting a witness immunity from a criminal prosecution based on evidence obtained from the witness in a judicial proceeding. Notwithstanding this statute, Charles Counselman, claiming the Fifth Amendment privilege against self‐incrimination, refused to answer certain questions before a federal grand jury. Confined for contempt of court, Counselman sought a writ of habeas corpus. The Court upheld his refusal to testify. It held that the privilege against self‐incrimination could be exercised not only by an accused person in a criminal case but also by a witness in any investigation, including grand jury proceedings. It also ruled that the federal immunity statute did not compel the appellant to testify, because its scope of protection was not as broad as that afforded by the privilege against self‐incrimination. The statute prevented the direct use of appellant's testimony in any federal proceeding but did not prohibit the use of his testimony to search for other evidence to be used against him.

There was broad language in Counselman that a valid immunity statute must afford a person compelled to testify absolute protection from prosecution for any offense to which the testimony relates. In Kastigar v. United States (1972), however, the Court held that an immunity statute need not safeguard a person compelled to testify against a prosecution based on evidence obtained independently of the compelled testimony.

See also Due Process, Procedural; Fifth Amendment Immunity; Self‐Incrimination.

Edgar Bodenheimer