Kastigar v. United States
406 U.S. 441 (1972)
Facts
The petitioners were subpoenaed to appear before a United States grand jury. Anticipating that the petitioners would assert their Fifth Amendment privilege, the government obtained an order from the District Court directing the petitioners to answer questions and produce evidence before the grand jury under a grant of immunity.
The scope of immunity was based on the federal witness immunity statute, which stated:
". . . the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but 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 case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." (18 U.S.C. Sec. 6002)
The petitioners opposed the court order, arguing that the scope of immunity granted was insufficient and that they should be afforded full immunity from any prosecution ("transactional" immunity).
They appeared but refused to answer questions, asserting their privilege against self-incrimination. The court found them in contempt, a decision which was upheld by the Court of Appeals for the Ninth Circuit.
The scope of immunity was based on the federal witness immunity statute, which stated:
". . . the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but 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 case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." (18 U.S.C. Sec. 6002)
The petitioners opposed the court order, arguing that the scope of immunity granted was insufficient and that they should be afforded full immunity from any prosecution ("transactional" immunity).
They appeared but refused to answer questions, asserting their privilege against self-incrimination. The court found them in contempt, a decision which was upheld by the Court of Appeals for the Ninth Circuit.
Issue
". . . whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom ('use and derivative use' immunity), or whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates ('transactional' immunity')" (443).
Holding
Affirmed. The lower courts' decisions were correct: the proper form of immunity in such cases is "use and derivative use" immunity.
Reasoning
- "The statute's explicit proscription of the use in any criminal case of 'testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)' is consonant with Fifth Amendment standards. 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" (453).
- "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" (453).
- "There can be no justification in reason or policy for holding that the Constitution requires an amnesty grant where, acting pursuant to statute and accompanying safeguards, testimony is compelled in exchange for immunity from use and derivative use when no such amnesty is required where the government, acting without colorable right, coerces a defendant into incriminating himself" (462).
Commentary
Prior to Kastigar, the guiding legal precedent was Counselman v. Hitchcock, 142 U.S. 547 (1892), which provided for full "transactional" immunity in cases of compelled statements. "Transactional" immunity means full protection from prosecution for the offense under investigation. This changed with Kastigar, in which the Supreme Court overturned Counselman, and held that immunity for compelled statements only applies to the use of the statements themselves, and to any evidence gained as a result of the protected statements. This is known as "use and derivative use" immunity, in which "use" is the use of the protected statements, and "derivative use" pertains to any evidence gained as a result of the protected statements. It is also known as "use plus fruits" immunity.
This means that the person in question can still be prosecuted for the offense under investigation, as long as the prosecution relies solely on evidence other than the protected statements and their fruits.
The result is that in many cases, what is known as a "Kastigar Hearing" takes place, in which the prosecution must prove that its case rests solely on evidence other than the protected statements and their fruits.
This was of more recent significance in regard to the Nisour Square incident of September 16, 2007. On that day, Blackwater military contractors in Iraq killed 17 civilians in Baghdad's Nisour Square. In December 2008 the United States Department of Justice brought criminal charges against five of the contractors who'd been involved, but the charges were dismissed in late 2009 because the prosecution had utilized evidence that was gained as a result of compelled statements by the employees.
It should be noted that full transactional immunity still applies in the Commonwealth of Massachusetts, as a result of the 1988 state supreme court decision in Carney v. City of Springfield, 403 Mass. 604 (1988).
This means that the person in question can still be prosecuted for the offense under investigation, as long as the prosecution relies solely on evidence other than the protected statements and their fruits.
The result is that in many cases, what is known as a "Kastigar Hearing" takes place, in which the prosecution must prove that its case rests solely on evidence other than the protected statements and their fruits.
This was of more recent significance in regard to the Nisour Square incident of September 16, 2007. On that day, Blackwater military contractors in Iraq killed 17 civilians in Baghdad's Nisour Square. In December 2008 the United States Department of Justice brought criminal charges against five of the contractors who'd been involved, but the charges were dismissed in late 2009 because the prosecution had utilized evidence that was gained as a result of compelled statements by the employees.
It should be noted that full transactional immunity still applies in the Commonwealth of Massachusetts, as a result of the 1988 state supreme court decision in Carney v. City of Springfield, 403 Mass. 604 (1988).
