Immunity Grant (Self-Incrimination)

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"No person," the Fifth Amendment unequivocally states, "shall be … compelled in any criminal case to be a witness against himself.…" It does not add, "unless such person cannot be prosecuted or punished as a result of his testimony," and it does not refer to self-incrimination. Yet, if the government wants evidence concerning a crime, it can compel a witness to testify by granting immunity from prosecution. In law, such immunity means that the witness cannot incriminate himself and therefore has suffered no violation of his right against self-incrimination. The common sense of the matter is that to "incriminate" means to implicate criminally; in law, however, it means exposure to prosecution or penalties. The law indulges the fiction that when one receives a grant of immunity, removing him from criminal jeopardy, the right not to be a witness against oneself is not violated. If the witness cannot be prosecuted, the penalties do not exist for him, so that his testimony can be compelled without forcing him to incriminate himself or "be a witness against himself."

The first immunity statute in Anglo-American jurisprudence was probably the one enacted by Connecticut in 1698. That act specified that witnesses in criminal cases must give sworn evidence, on pain of punishment for refusal, "always provided that no person required to give testimonie as aforesaid shall be punished for what he doth confesse against himself when under oath." Similarly, an act that Parliament passed against gambling in 1710, which some colonies copied, guaranteed that gamblers who confessed their crimes and returned their winnings should be "acquitted, indemnified [immunized] and discharged from any further or other Punishment, Forfeiture, or Penalty which he or they may have incurred by the playing for or winning such Money.…" New York in 1758 obtained the king's pardon for certain ship captains in order to compel their testimony against the ships' owners. Although the pardons had eliminated the perils of the criminal law for the captains, they persisted in their claim that the law could not force them to declare anything that might incriminate them. A court fined them for contempt, on grounds that the recalcitrant captains no longer faced criminal jeopardy by giving evidence against themselves.

In modern language these colonial precedents illustrate grants of "transactional" immunity, an absolute guarantee that in return for evidence, the compelled person will not under any circumstances be prosecuted for the transaction or criminal episode concerning which he gives testimony. Absolute or transactional immunity was the price paid by the law for exacting information that would otherwise be actionable criminally. The paradox remained: one could be compelled to be a witness against oneself, but from the law's perspective the immunized witness would stand to the offense as if he had never committed it, or had received amnesty or a pardon despite having committed it.

Congress enacted its first immunity statute in 1857, granting freedom from prosecution for any acts or transactions to which a witness offered testimony in an investigation. Reacting against the immunity "baths" that enabled corrupt officials to escape from criminal liability by offering immunized testimony, Congress in 1862 supplanted the act of 1857 with one that offered only "use" immunity. Use immunity guarantees only that the compelled testimony will not be used in a criminal prosecution, but prosecution is possible if based on evidence independent from or unrelated to the compelled testimony. Under a grant of use immunity one might confess to a crime secure in the knowledge that his confession could not be used against him; however, if the prosecution had other evidence to prove his guilt, he might be prosecuted. By 1887 Congress extended the standard of use immunity from congressional investigations to all federal proceedings.

Until 1972 the Supreme Court demanded transactional rather than use immunity as the sole basis for displacing the Fifth Amendment right to remain silent. In counsel-man v. hitchcock (1892) the Court unanimously held unconstitutional a congressional act offering use immunity because use immunity was "not co-extensive with the constitutional provision." The compelled testimony might provide leads to evidence that the prosecution might not otherwise possess. To supplant the constitutional guarantee, an immunity statute must provide "complete protection" from all criminal perils; "in view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates." Congress responded with a statute safeguarding against prosecution, forfeiture, or penalty for any transaction about which one might be compelled to testify. In brown v. walker (1896) the Court held that transactional immunity "operates as a pardon for the offense to which it relates," thus satisfying the constitutional guarantee. In effect the Court permitted what it had declared was impossible: congressional amendment of the Constitution. By a statute that served as a "substitute," Congress altered the guarantee that no one can be compelled to be a witness against himself criminally.

Until 1970 there were over fifty federal immunity statutes conforming with Brown' s transactional immunity standard, which the Court reendorsed in ullmann v. united states (1956). When the Court scrapped its two sovereignties rule in Murphy v. Waterfront Commission (1964), it held that absent an immunity grant, a state witness could not be compelled to testify unless his testimony "and its fruits" could not be used by the federal government. Murphy was a technical relaxation of the transactional immunity standard, as albertson v. subversive activities control board (1965) proved, because a unanimous Court reconfirmed the transactional immunity standard.

Through the organized crime control act of 1970, Congress made use immunity and derivative-use immunity the standard for all federal grants of immunity, and most states copied the new standard. No compelled testimony or its "fruits" (information directly or indirectly derived from such testimony) could be used against a witness criminally, except to prove perjury. In kastigar v. united states (1972) the Court relied on Murphy, ignored or distorted all other precedents, and upheld the narrow standard as coextensive with the Fifth Amendment, which it is not. One who relies on his right to remain silent forces the state to rely wholly on its own evidence to convict him. By remaining silent he gives the state no way to use his testimony, however indirectly. When he is compelled to be a witness against himself, his admissions assist the state's investigation against him. The burden of proving that the state's evidence derives from sources wholly independent of the compelled testimony lies upon the prosecution. But use immunity permits compulsion without removing criminality.

In New Jersey v. Portash (1979) the Court held that a defendant's immunized grand jury testimony could not be introduced to impeach his testimony at his trial. Whether the state may introduce immunized testimony to prove perjury has not been decided. In Portash, however, the Court conceded, "Testimony given in response to a grant of legislative immunity is the essence of coerced testimony." The essence of the Fifth Amendment's provision is that testimony against oneself cannot be coerced. Any grant of immunity that compels testimony compels one to be a witness against himself—except, of course, that it is "impossible," as the Court said in Counselman, for the constitutional guarantee to mean what it says.

Leonard W. Levy


Levy, Leonard W. 1974 Against the Law: The Nixon Court and Criminal Justice. Pages 165–187. New York: Harper & Row.

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Immunity Grant (Self-Incrimination)

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