COUNSELMAN v. HITCHCOCK 142 U.S. 547 (1892)

The first Supreme Court decision on immunity statutes, Counselman remained the leading case until it was distinguished away in kastigar v. united states (1972). Appellant refused to testify before a federal grand jury on the ground that he might incriminate himself, though he had been granted use immunity under an 1887 act of Congress guaranteeing that his evidence would not be used against him criminally, except in a prosecution for perjury. Counselman thus raised the question whether a grant of use immunity could supplant the Fifth Amendment right of a person not to be a witness against himself in a criminal case. The government contended that an investigation before a grand jury was not a criminal case, which could arise only after an indictment should be returned, but that in any instance, Counselman had received immunity in return for his testimony.

Justice samuel blatchford for a unanimous Court declared that it is "impossible" that the clause of the Fifth Amendment could mean only what it says, for it is not limited to situations in which one is compelled to be a witness against himself in a "criminal case." The object of the clause is to insure that no person should be compelled as a witness "in any investigation" to testify to anything that might tend to show he had committed a crime. "The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard," and therefore it applied to grand jury proceedings that might result in a prosecution. Clearly, said Blatchford, a statute cannot abridge a constitutional privilege nor replace one, "unless it is so broad as to have the same extent in scope and effect." The statute did not even do what it purported to do; it did not bar use of the compelled testimony, for its fruits could be used against the witness by searching out any leads, originating with his testimony, to other evidence that could convict him. No statute leaving the witness subject to prosecution after answering incriminating questions can have the effect of supplanting the constitutional provision. The 1887 act of Congress was unconstitutional because it was not a "full substitute" for that provision.

Thus the Court introduced the extraordinary doctrine that a statute could be a substitute for a provision of the Constitution, after having said that a statute could not "replace" such a provision. But the statute, to be constitutional, must serve "co-extensively" with the right it replaces. The Court laid down the standard for transactional immunity : to be valid the statute "must afford absolute immunity against future prosecution for the offense to which the question relates."

Leonard W. Levy
(1986)

(see also: Right Against Self-Incrimination.)