Kastigar v. United States
406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)

  • A prosecutor wanted Kastigar and Stewart to testify before a grand jury. However, the required testimony would implicate them in a crime. Therefore the prosecutor granted the two immunity and then ordered them to testify.
  • Kastigar and Stewart refused to testify, and were arrested and charged with contempt. They appealed.
    • Kastigar and Stewart argued that the subpoena violated their 5th Amendment right against self-incrimination because the grant of immunity did not include transactional immunity.
      • Transactional immunity means that you are immune from prosecution for any offense to which the compelled testimony might relate, no matter what other evidence there is.
      • For plain old regular immunity from use and derivative use (like being offered here), if charges are later filed against the witness, the burden is on the prosecution to show that the information came from a completely independent source.
    • In addition, Kastigar and Stewart argued that being forced to testify (and possibly implicate oneself in a crime) without being allowed to have a lawyer in the courtroom was a violation of the 6th Amendment right to counsel.
  • The Appellate Court affirmed. Kastigar and Stewart appealed.
  • The US Supreme Court affirmed.
    • The US Supreme Court found that a witness “who invokes the 5th 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.
    • The Court noted that a grant of immunity is not a pardon nor an amnesty from the crime. The government should still be allowed to prosecute using evidence from legitimate independent sources. The only thing that the 5th Amendment prohibits is compelled self-incrimination, and immunity from use and derivative use satisfies that prohibition.
      • Transactional immunity puts the defendant in a better position then they would be if they did not testify.
  • In most cases, derivative use immunity is the functional equivalent of transactional immunity. The ‘derivative use’ is important because if you admit that you did the crime then the police would be tempted to look extra hard to find independent evidence of your guilt.
    • See Murphy v. Waterfront Commission of New York (378 U.S. 52 (1964)).