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RESEARCH
The defendants were subpoenaed to testify before a federal grand jury. Anticipating that the defendants would invoke their Fifth Amendment right against selfincrimination, the government sought an order to compel the defendants to testify under a grant of immunity pursuant to 18 U.S.C. §§ 6002-6003. The immunity granted to the defendants provided them protection from the use of their compelled testimony in subsequent criminal proceedings, as well as immunity from the use of evidence derived from the testimony (use and derivative use immunity) but not from the crimes themselves. The order was granted over the objection of the defendants. When the defendants appeared before the grand jury, all invoked their privilege against selfincrimination and refused to testify. The District Court held the defendants in contempt and placed them in custody until such time as they answered the grand jury’s questions or the grand jury’s term expired.
1. Whether the government can compel testimony from an unwilling witness who invokes his Fifth Amendment privilege against self-incrimination by granting the witness immunity?
2. Whether the government must grant use or transactional immunity to compel testimony?
1. Yes. The government can compel testimony from an unwilling witness who invokes his Fifth Amendment privilege against self- incrimination by granting the witness immunity.
2. No. The grant of use immunity to the witness is all that the Fifth Amendment guarantees.
The power to compel individuals to testify before grand juries and in courts is well settled. However, this power is not absolute and is subject to a variety of exemptions, most notably the Fifth Amendment privilege against self-incrimination. In this case, the defendants asserted that, at a minimum, a statute must afford them full transactional immunity in order to comply with the Fifth Amendment privilege. The Court rejected this argument, stating “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, on the other hand, provides a defendant a much broader protection than does the Fifth Amendment privilege, in that a defendant is afforded full immunity from prosecution. “While a grant of immunity must afford protection commensurate with that afforded by the Fifth Amendment privilege, it need not be broader.” In sum, the Court concluded “the immunity provided by 18 U.S.C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it.”
406 U.S. 441, 92 S. Ct. 1653 (1972)
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