was not coextensive with the privilege against self-incrimination. After being ordered to appear and answer the grand jury's questions, Kastigar and Stewart persisted in their refusal to answer and were held in contempt. The Court of Appeals for the Ninth Circuit affirmed the district court's findings that Kastigar and Stewart were in contempt.3 The Supreme Court of the United States granted certiorari to resolve the issue whether testimony may be compelled by granting immunity from use of compelled testimony and the fruits of such testimony, or whether a grant of immunity from prosecution for offenses to which compelled testimony relates is required in order to compel testimony. Held: Immunity from the use and derivative use of compelled testimony is coextensive with the constitutional privilege and that broader immunity is not constitutionally required to compel testimony.5

II.

The holding of the Supreme Court in Kastigar is the first resolution of the issue of use and derivative-use immunity versus transactional immunity. In 1892 the Supreme Court decided Counselman v. Hitchcock which became the authority for the proposition that testimony could not be compelled unless immunity was absolute-that is unless transactional immunity was granted.

In that landmark decision, the Supreme Court was called upon to resolve the issue whether testimony could be compelled under a grant of immunity conferred under the provisions of section 860 of the Revised Statutes." That section provided:

3. Stewart v. United States, 440 F.2d 954 (9th Cir 1971), aff'd sub nom. Kastigar v. United States, 406 U.S. 441 (1972).

4. The following examples illustrate the concepts of transactional immunity and immunity from use and derivative use.

1. A participates in a larceny with B. A testifies against B under a grant of immunity from prosecution for any offense with which his testimony might connect him. This immunity is transactional immunity. Having been given such a grant, A may not be prosecuted for the larceny regardless of how much evidence there is against him aliunde his testimony. Transactional immunity will also be called absolute immunity in this casenote.

2. A participates in a larceny with B. A testifies against B under a grant of immunity from the use of his testimony or its fruits against him. This is use and derivative-use immunity. Having been given such a grant, A may be prosecuted for the larceny, but his testimony, or evidence derived therefrom, may not be used against him. The testimony cannot be used to obtain leads or for any other purpose against A.

5. Kastigar v. United States, 406 U.S. 441 (1972).

6. 142 U.S. 547 (1892).

7. Rev. Stat. § 860, 18 Stat. 162 (1874). The Supreme Court noted that § 860 of the Revised Statutes was a reenactment of § 1 of the act of February 25, 1868, chapter 13 (15 Stat. 37). The latter statute provided: "That no answer or other pleading of any party, and no discovery, or evidence obtained by means of any judicial proceeding from any party or witness in this or any foreign country, shall be given in evidence, or in any manner used against such party or witness, or his property

No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.

The Court held that immunity must be coextensive with the privilege conferred by the fifth amendment. In applying that test to the statute under consideration, the Court noted that the statute did not prevent use of the compelled testimony to obtain leads which could be useful in discovering other evidence against a witness. In holding that the immunity provided by the statute was an inadequate substitute for the constitutional privilege, the Court went beyond the noted defect and stated:

We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates. . . .8

At this point it appeared that the high court might well approve an immunity statute granting absolute immunity. Relying on the Court's language in Counselman, Congress passed the Act of February 11, 1893 (27 Stat. 443), which granted a witness immunity from prosecution for any transaction concerning which he might testify before the Interstate Commerce Commission. This statute was upheld in Brown v. Walker.10 With four justices dissenting, the Court in Brown established that transactional immunity was a sufficient substitute for the constitutional privilege. The Court rejected the contention that a purpose of the privilege was to shield a witness from personal disgrace or opprobrium which might arise from his disclosures. The majority was of the opinion that, as long as the compelled testimony could not be used as a basis for or in aid of a prosecution, the constitutional privilege became inoperative. The majority's opinion quoted language from Counselman concerning the requirement of absolute immunity to allow testimony to be compelled.11

or estate, in any court of the United States, or in any proceeding by or before any officer of the United States, in respect to any crime, or for the enforcement of any penalty or forfeiture by reason of any act or omission of such party or witness: Provided, That nothing in this act shall be construed to exempt any party or witness from prosecution and punishment for perjury committed by him in discovering or testifying as aforesaid."

8. 142 U.S. at 585-86.

9. See Brown v. Walker, 161 U.S. 591 (1896).

10. Id.

11. Id. at 594.

Transactional immunity appeared to be accepted as the requirement for compelling a witness to testify over his assertion of the privilege against self-incrimination.12 Until 1970, with one exception,13 immunity statutes enacted by Congress provided for transactional immunity.14

Murphy v. Waterfront Commission,15 decided in 1964, signalled the likelihood that the constitutional privilege did not require absolute immunity be granted in order to compel testimony. The issue facing the Supreme Court in Murphy was whether a State grant of immunity was sufficient if it did not prevent a Federal prosecution. The Court held that a grant of immunity had to extend to the Federal Government, but that prohibition of use of the testimony and its fruits by the Federal Government was sufficient protection for the witness to be compelled to testify. The decision left it unclear whether the court made its determination upon a constitutional basis or upon the basis of its supervisory authority over the Federal courts, but the Court held that the Federal Government was precluded from using the compelled testimony and its fruits. Mr. Justice White, concurring in the result, criticized as far-reaching and unnecessary the requirement that the witness be immune from prosecution in the Federal courts. He considered immunity from the use of the testimony and its fruits to be sufficient. He characterized pronouncements supporting a requirement of transactional immunity as dicta.16 In spite of the language of Murphy in both its principal and concurring opinions, the question still remained whether use and derivative-use immunity granted by the jurisdiction seeking to compel the testimony would be sufficient.17

In 1968 the Supreme Court decided Gardner v. Broderick18 which resolved the issue whether a public employee could be discharged for refusing to waive the protection afforded by the privilege against self-incrimination. The Court held that a discharge from employment for refusal to waive a constitutional right was improper. In the course of its opinion, the Court stated:

Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a

12. See, e.g., McCarthy v. Arndstein, 266 U.S. 34 (1924); United States v. Monia, 317 U.S. 424 (1943); Smith v. United States, 337 U.S. 137 (1949); Ullmann v. United States, 350 U.S. 422 (1956); United States v. Murdock, 284 U.S. 141 (1931); Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965); Adams v. Maryland, 347 U.S. 179 (1954).

13. Immunity provision of the Bankruptcy Act of 1898, § 7(a) (9), 30 Stat. 548. This provision was ruled inadequate in McCarthy v. Arndstein, Id.

14. See Kastigar v. United States, 406 U.S. at 452.

15. 378 U.S. 52 (1964).

16. 378 U.S. at 93.

17. Stevens v. Marks, 383 U.S. 234 (1966). The concurring opinion of Mr. Justice Harlan indicated that still open was the question of whether use and derivative-use immunity was sufficient.

18. 392 U.S. 273 (1968).

criminal proscution against the person testifying. Counselman v. Hitchcock, supra, at 585-586, Murphy v. Waterfront Commission, supra, at 79.19

This language certainly indicated a retreat from the position of the Court in Counselman v. Hitchcock20 with regard to that decision's requirement of absolute immunity. Broderick also suggested that the principle set forth in Murphy-that immunity from the use of testimony and its fruits by a second jurisdiction was sufficient was likely to be extended to the jurisdiction compelling a witness' testimony as well.

1

Nevertheless, as late as 1971 it was not a certainty that the Court was ready to abrogate the "rule" in Counselman v. Hitchcock, 21 In Piccirillo v. New York22 the question whether absolute immunity from prosecution was required to compel a witness to testify was before the Court. The case centered around an immunity statute of the State of New York. The petitioner contended that transactional immunity was required. Because the New York Court of Appeals held that transactional immunity was required in New York 23 after he had appealed to the United States Supreme Court, the majority of the Supreme Court decided that the case was inappropriate for deciding the issue and dismissed the writ of certiorari. The majority reasoned that the case was inappropriate deciding the issue because there was no longer any dispute between the petitioner and the State as to the type of immunity required in New York. Justice Douglas, Marshall, and Brennan dissented expressing the view that transactional immunity was required to compel a witness to testify.

Following passage of Title II of the Organized Crime Control Act of 1970,24 a number of circuit courts held that its immunity provisions were inadequate to compel unwilling witnesses to testify over claims of the privilege against self-incrimination. The Fifth Circuit held that the immunity afforded by the statute was not coextensive with the scope of the privilege.25 Considering Murphy the court said that a different standard applied to the jurisdiction compelling testimony from that applying to another jurisdiction. In holding the immunity granted by the Act inadequate, the Seventh Circuit expressed the opinion that the language in Counselman v. Hitchcock requiring absolute immunity could not be dismissed as dicta.26

19. Id. at 276.

20. 142 U.S. 547 (1892).

21. Id.

22. 400 U.S. 548 (1971).

23. Gold v. Menna, 25 N.Y.2d 475, 225 N.E.2d 235, 307 N.Y.S.2d 33 (1969).

24. 18 U.S.C. §§ 6001-6005 (1970).

25. United States v. Cropper, 454 F.2d 215 (5th Cir. 1971), rev'd mem., 406 U.S. 952 (1972); but see, Mattox v. Carson, 424 F.2d 202 (5th Cir. 1970) where a different panel stated that the Florida right of immunity which prohibited prosecution was broader than the right under the fifth amendment.

26. In re Korman, 449 F.2d 32 (7th Cir. 1971), rev'd mem. sub nom., United States v. Korman, 406 U.S. 952 (1972).

The Ninth Circuit, however, ruled that the immunity provisions of the Act were constitutional.27 The court's decision was affirmed in Kastigar v. United States.28

Kastigar has finally resolved an issue which, according to the majority opinion, was never really settled by Counselman v. Hitchcock.29 The majority placed heavy reliance on Murphy and characterized the broad language of Counselman as dicta which was unnecessary to a resolution of the issue before the Court in that case. The majority accepted as accurate the statement in Murphy that immunity from use and derivative use of testimony leaves the witness and the Government in the same position they would be in in the absence of requiring the witness to testify over his claim of privilege.30 The Court was also concerned with assurance that such immunity would in fact be sufficient protection. Responding to the contention that a person receiving immunity under the Act would be dependent on the integrity of the prosecuting authorities for the protection of his rights, the Court reaffirmed the burden of proof set forth in Murphy. The Court there stated:

Once a defendant demonstrates that he has testified under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence."

31

Thus, the prosecution is required to prove that all evidence to be used comes from legitimate sources, entirely independent of compelled evidence, once the defendant shows that he has testified under a grant of immunity flowing from the statute. The majority regarded this as substantial protection, equal in scope to the privilege against self-incrimination. The Court emphasized that the fifth-amendment privilege does not grant amnesty or pardon, but merely prevents use of evidence obtained in violation of the privilege. Thus, the protection of the statute was considered adequate.32

III.

The authority of a general court-martial convening authority to compel a military witness to testify over a claim of the privilege against self-incrimination by granting immunity was upheld by the United States Court of Military Appeals in United States v. Kirsch.33 It is evident that the court was under the very strong impression that transactional immunity was required in order to compel testimony over a claim of privilege under the Constitution. The court looked to the Uniform Code of Military Justice for provisions which

27. Stewart v. United States, 440 F.2d 954 (9th Cir. 1971), aff'd sub nom. Kastigar v. United States, 406 U.S. 441 (1972).

28. Kastigar v. United States, 406 U.S. 441 (1972).

29. 142 U.S. 547 (1892).

30. Kastigar v. United States, 406 U.S. at 458-59.

31. Id. at 460; Murphy v. Waterfront Commission, 378 U.S. 52, 79 n.18 (1964).

32. 406 U.S. at 461.

33. 15 USCMA 84, 35 CMR 56 (1964).