Zicarelli v. The New Jersey State Commission of Investigation - The Issue Of Immunity

Contrary to Zicarelli's contention, the Court decided that the type of immunity granted in this case--"immunity from use and derivative use" of Zicarelli's testimony--was entirely consistent with the Fifth Amendment's privilege against self-incrimination. Therefore, even though the commission had not promised not to prosecute Zicarelli for the events about which he was being asked to testify, it could force him to testify without violating his constitutional rights. In making this determination, the Court relied on a previous decision, in the case of Kastigar v. United States. As Justice Powell wrote:

Appellant . . . contends that while immunity from use and derivative use may suffice to secure the protection of the privilege from invasion by jurisdictions other than the jurisdiction seeking to compel testimony, that jurisdiction must grant the greater protection afforded by transactional immunity. In Kastigar, we held that immunity from use and derivative use is commensurate with the protection afforded by the privilege, and rejected the notion that in our federal system a jurisdiction seeking to compel testimony must grant protection greater than that afforded by the privilege in order to supplant the privilege and compel testimony. Our holding in Kastigar is controlling here.