Ullmann v. United States

Writing for the Court, Justice Frankfurterheld that the Fifth Amendment privilege only protects a witness from being compelled to give testimony that could result in criminal prosecution:

[T]he immunity granted need only remove those sanctions which generate the fear justifying invocation of the privilege: "the interdiction of the 5th Amendment operates only where a witness is asked to incriminated himself,--in other words, to give testimony which may possibly expose him to a criminal charge. But if the criminality has already been taken away, the amendment ceases to apply." [Quoting Hale v. Henek (1906)].

Since the Immunity Act removed the threat of prosecution for actions revealed by the compelled testimony, the privilege did not apply in Ullmann's case. The Fifth Amendment was not designed by the framers of the Constitution to protect against the kinds of harms Ullmann cited. Always a proponent of judicial restraint and an advocate of legislative prerogatives, Frankfurter added that the Constitution could not be changed except by the formal amendatory process. The Immunity Act was upheld.

Ullmann had good reason to fear testifying before the grand jury. During the red-baiting period that followed World War II, those who refused to testify before investigative bodies like the notorious House Committee on Un-American Activities (HUAC) became known as "Fifth Amendment Communists." For them, an invocation of the privilege might as well have been an admission of guilt. Many lost jobs, families, friends, and all social status. When the Red Scare abated, cooling off to the point it became a Cold War with the Soviet Union, domestic persecution of suspected communists also eased. But in 1954, transactional immunity could not really protect William Ullmann adequately.

In the 1970s, Congress enacted a law providing for "use immunity." This type of immunity offers even less coverage than transactional immunity, in that it only protects a witness from use in a subsequent prosecution of the compelled testimony and any evidence obtained because of it. Unlike transactional immunity, it does not protect a witness from being prosecuted for the same offense if evidence is independently obtained. Use immunity, like transactional immunity, has been upheld as constitutional. The purpose of the Fifth Amendment privilege against self-incrimination has been interpreted as a support for the fundamental proposition that under the American system of laws, the prosecution has to carry the burden of proof. If witnesses are granted immunity--of either sort--in exchange for their testimony, they will not be doing the prosecution's work for them.