self-incrimination

“Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible [with the values of the Self-Incrimination Clause]. Rather they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.” 1 Apparently the first immunity statute was enacted by Parliament in 17102 and it was widely copied in the colonies. The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from prosecution for any matter “touching which” he had testified.3 Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional witness,4 the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock5 that an analogous limited immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was ambiguous with regard to its grounds because it identified two faults in the statute: it did not proscribe “derivative” evidence6 and it prohibited only future use of the compelled testimony.7 The latter language accentuated a division between adherents of “transactional” immunity and of “use” immunity which has continued to the present.8 In any event, following Counselman, Congress enacted a statute that conferred transactional immunity as the price for being able to compel testimony,9 and the Court sustained this law in a five-to-four decision.10 “The 1893 statute has become part of our constitutional fabric and has been included ‘in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.’” 11 So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal immunity statute.12 Because all but one of the immunity acts passed after Brown v. Walker were transactional immunity statutes,13 the question of the constitutional sufficiency of use immunity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of grant.14 But, beginning in 1964, when it applied the Self-Incrimination Clause to the states, the Court was faced with the problem that arose because a state could grant immunity only in its own courts and not in the courts of another state or of the United States.15 On the other hand, to foreclose the states from compelling testimony because they could not immunize a witness in a subsequent “foreign” prosecution would severely limit state law enforcement efforts. Therefore, the Court emphasized the “use” restriction rationale of Counselman and announced that as a “constitutional rule, a state witness could not be compelled to incriminate himself under federal law unless federal authorities were precluded from using either his testimony or evidence derived from it,” and thus formulated a use restriction to that effect.16 Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indicated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was “in principle an attractive and apparently practical resolution of the difficult problem before us,” citing Murphy with apparent approval.17 Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only.18 -6003. Justice Department officials have the authority under the Act to decide whether to seek immunity, and courts will not apply “constructive” use immunity absent compliance with the statute’s procedures. United States v. Doe, 465 U.S. 605 (1984). Soon tested,