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No. 97-873. Argued April 20, 1998-Decided June 25,1998

When the Office of Special Investigations of the Department of Justice's Criminal Division (OSI) subpoenaed respondent Balsys, a resident alien, to testify about his wartime activities between 1940 and 1944 and his immigration to the United States, he claimed the Fifth Amendment privilege against self-incrimination, based on his fear of prosecution by a foreign nation. The Federal District Court granted OSI's petition to enforce the subpoena, but the Second Circuit vacated the order, holding that a witness with a real and substantial fear of prosecution by a foreign country may assert the privilege to avoid giving testimony in a domestic proceeding, even if the witness has no valid fear of a criminal prosecution in this country.

Held: Concern with foreign prosecution is beyond the scope of the SelfIncrimination Clause. Pp. 671-700.

(a) As a resident alien, Balsys is a "person" who, under that Clause, cannot "be compelled in any criminal case to be a witness against himself." See Kwong Hai Ghew v. Golding, 344 U. S. 590, 596. However, the question here is whether a criminal prosecution by a foreign government not subject to this country's constitutional guarantees presents a "criminal case" for purposes of the privilege. Pp. 671-672.

(b) Balsys initially relies on the textual contrast between the Sixth Amendment, which clearly applies only to domestic criminal proceedings, and the Fifth, with its broader reference to "any criminal case," to argue that "any criminal case" means exactly that, regardless of the prosecuting authority. But the argument overlooks the cardinal rule to construe provisions in context. See King v. St. Vincent's Hospital, 502 U. S. 215, 221. Because none of the other provisions of the Fifth Amendment is implicated except by action of the government that it binds, it would have been strange to choose such associates for a Clause meant to take a broader view. Further, a more modest understanding, that "any criminal case" distinguishes the Fifth Amendment's SelfIncrimination Clause from its Clause limiting grand jury indictments to "capital, or otherwise infamous crime[s]," provides an explanation for the text of the privilege. Indeed, there is no known clear common-law precedent or practice, contemporaneous with the framing, for looking to


the possibility offoreign prosecution as a premise for claiming the privilege. Pp. 672-674.

(c) In the precursors of this case, the Court concluded that prosecution in a state jurisdiction not bound by the Self-Incrimination Clause is beyond the purview of the privilege. United States v. Murdock, 284 U. S. 141. United States v. Saline Bank of Va., 1 Pet. 100, and Ballmann v. Fagin, 200 U. S. 186, distinguished. The Court's precedent turned away from this proposition once, in Malloy v. Hogan, 378 U. S. 1, 3, where it applied the Fourteenth Amendment due process incorporation to the Self-Incrimination Clause, so as to bind the States as well as the National Government by its terms. It immediately said, in Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U. S. 52, 57, that Malloy necessitated a reconsideration of Murdock's rule. After Malloy, the Fifth Amendment limitation was no longer framed for one jurisdiction alone, each jurisdiction having instead become subject to the same privilege claim flowing from the same source. Since fear of prosecution in the one jurisdiction now implicated the very privilege binding upon the other, the Murphy opinion sensibly recognized that if a witness could not assert the privilege in such circumstances, the witness could be "whipsawed" into incriminating himself under both state and federal law, even though the privilege was applicable to each. Such whipsawing is possible because the privilege against self-incrimination can be exchanged by the government for an immunity to prosecutorial use of any compelled inculpatory testimony. Kastigar v. United States, 406 U. S. 441, 448-449. Such an exchange by the government is permissible only when it provides immunity as broad as the privilege. Mter Malloy had held the privilege binding on the state jurisdictions as well as the National Government, it would have been intolerable to allow a prosecutor in one or the other jurisdiction to eliminate the privilege by offering immunity less complete than the privilege's dual jurisdictional reach. To the extent that the Murphy Court undercut Murdock's rationale on historical grounds, its reasoning that English cases supported a more expansive reading of the Clause is flawed and cannot be accepted now. Pp.674-690.

(d) Murphy discusses a catalog of "Policies of the Privilege," which could suggest a concern broad enough to encompass foreign prosecutions. However, the adoption of such a revised theory would rest on Murphy's treatment of English cases, which has been rejected as an indication of the Clause's meaning. Moreover, although Murphy catalogs aspirations furthered by the Clause, its discussion does not weigh the host of competing policy concerns that would be raised in a legitimate reconsideration of the Clause's scope. Contrary to Balsys's

Full Text of Opinion


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