The defendant was a resident alien who obtained admission to the United States in 1961. In his application for admission, he stated that he had served in the Lithuanian army between 1934 and 1940, and had lived in hiding in Lithuania between 1940 and 1944. Further, he swore that the information was true, and signed a statement of understanding that if his application contained any false information or materially misleading statements, or concealed any material fact, he would be subject to criminal prosecution and deportation. The Office of Special Investigations (OSI), which was created to institute denaturalization and deportation proceedings against suspected Nazi war criminals, began investigating the defendant to determine if he had participated in Nazi persecution during World War II. If proven, this participation could have resulted in the defendant being deported. Pursuant to a subpoena issued by OSI, the defendant appeared to testify at a deposition, but refused to answer questions about his wartime service and his immigration to the United States. He invoked his Fifth Amendment right against compelled self-incrimination, claiming that his answers could subject him to criminal prosecution by Lithuania, Israel, and Germany.
Whether an individual can claim the Fifth Amendment privilege against selfincrimination based upon fear of prosecution by a foreign nation?
No. The Fifth Amendment privilege against self-incrimination may only be based upon fear of prosecution within the United States.
The self-incrimination clause of the Fifth Amendment provides a privilege against selfincrimination in “any criminal case.” This means that an individual has a right against compelled self-incrimination if what he says “could be used in a criminal proceeding against him brought by the Government of either the United States or one of the States.” However, in this case, the defendant did not invoke the privilege based upon a fear of prosecution by the United States or one of the states. The Court held that possible criminal prosecution by a foreign government is not subject to our constitutional guarantees and, therefore, is beyond the scope of the Fifth Amendment’s protections.
524 U.S. 666, 118 S. Ct. 2218 (1999)