KASTIGAR v. UNITED STATES 406 U.S. 441 (1972)

Until this case the rule was that the Fifth Amendment requires a grant of transactional immunity to displace a claim of the right against self-incrimination. Title II of the organized crime control act of 1970 fixed a single comprehensive standard applicable to grants of immunity in all federal judicial, grand jury, administrative, and legislative proceedings. The new law provided that when a witness is required to testify over his claim of the Fifth Amendment right, "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal cases," except in a prosecution for perjury or failure to comply. The statute thus provided for use immunity, permitting a prosecution based on evidence not derived from the testimony forced by a grant of immunity. (See immunity grant.)

Kastigar was cited for contempt after he persisted in his refusal to testify concerning unnecessary dental services affecting the draft status of persons seeking to evade the draft. His refusal to testify raised the question whether the grant of use immunity was sufficient to displace the Fifth Amendment right.

A seven-member Supreme Court, voting 5–2, sustained the constitutionality of use immunity. Justice lewis f. powell declared: "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.… 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." Powell dismissed counselman v. hitchcock (1892) and its progeny, which established the transactional immunity standard, as obiter dicta and therefore not binding. Powell reasoned that a witness who had use immunity against his compelled testimony is in substantially the same position as if he had invoked the Fifth Amendment in the absence of a grant of immunity.

But one who relies on his constitutional right to silence gives the state no possible way to use his testimony, however indirectly, against him, and he has not remotely, from the standpoint of the law, criminally implicated himself. Use immunity permits compulsion without removing the implication of criminality. On the other hand, the values of the Fifth Amendment are not infringed if the state prosecutes on evidence not related to the compelled testimony, and the state has the burden of proving that the prosecution relies on evidence from sources independent of the compelled testimony. The trouble is, as Justice

thurgood marshall pointed out in dissent, that only the prosecuting authorities know, if even they can know, the chains of information by which evidence was gathered. In any case, use immunity compels a person to be a witness against himself criminally.

Leonard W. Levy
(1986)

Bibliography

Levy, Leonard W. 1974 Against the Law: The Nixon Court and Criminal Justice. Pages 173–187. New York: Harper & Row.