Kastigar v. United States

Hugh R. Manes, representing the petitioners Kastigar and Stewart, argued that his clients declined to testify because they believed that only transactional immunity would afford them an appropriate level of protection against self-incrimination, as promised by the Fifth Amendment. He also implied that having to testify before a grand jury is unfair because although one would be faced with a lawyer, that person would not be allowed to have a lawyer in the room with him, and that having to decide between jail or incriminating oneself would be a "choice between a rock and a whirlpool."

The chief lawyer for the respondent, Erwin N. Griswold, pointed out that no compelled testimony can be used against a witness if a guarantee of immunity has been given. When using any testimony or evidence derived by a witness under immunity, the burden is placed upon the prosecution to show that such information came from a completely independent source. Griswold maintained that the extended immunity that was offered to Kastigar and Stewart met all of the requirements of the Fifth Amendment.

Justice Powell delivered the opinion of the Court, which affirmed the ruling of the court of appeals. The Supreme Court found that a witness "who invokes the Fifth Amendment privilege against compulsory self-incrimination" can be compelled to testify if given immunity "as such immunity from use and derivative use is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of privilege." While transactional immunity offers broader protection, it "is not constitutionally required."

Historically, many governments have been known to have the power to compel testimony from witnesses, as this information was important to the protection of their public. The Fifth Amendment of the U.S. Constitution is an exception that protects an individual from having to incriminate himself. Justice Powell noted that the petitioners' first point of contention, that the Fifth Amendment's protection of a witness from self-incrimination may allow that witness to decline to testify, would require that the cases of Brown v. Walker (1896) and Ullmann v. United States (1956) be overruled, to which the Court found no merit, and reaffirmed them. The petitioners' second contention was that the scope of the offered immunity was not coextensive with what the Fifth Amendment offers, which in their opinion would be transactional immunity, the most extensive available, pointing to Counselman v. Hitchcock (1892). The Court found that "transactional immunity, which accords full immunity from prosecution from the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege." The Court decided that transactional immunity was not required in this case, and that the immunity offered was "sufficient to compel testimony over a claim of the privilege." The Court affirmed the decision of the court of appeals.

Two justices offered dissenting views. Justice Douglas did not believe that the "use" immunity offered to the petitioners in this case was coextensive compared to making a person "be a witness against himself," saying that he "would adhere to Counselman v. Hitchcock and hold that this attempt to dilute the Self-Incrimination Clause is unconstitutional." Justice Marshall, also dissenting, believed that the Fifth Amendment gives the right to withhold testimony, unless such a broad grant of immunity was offered so that there was no "possibility that the testimony will in fact operate to incriminate him." He concluded that "it is clear to me that an immunity statute must be tested by a standard far more demanding than that appropriate for an exclusionary rule fashioned to deal with past constitutional violations. Measured by that standard, the statute approved today by the Court fails miserably."