like the grand jury part of the 1954 Act, the following three preconditions for a grant of immunity: (1) judgment of a United States Attorney that the testimony is necessary to the "public interest"; (2) approval of the Attorney General; (3) court order. After these requirements are met immunity is acquired-in accord with present practice under all similar statutes-when the witness does relinquish his Fifth Amendment plea, under pain of contempt punishment if he persists, and responds to the Government's request for testimonial or documentary information. Similar statutes are Consumer Protection Act of 1968; Omnibus Crime Control and Safe Streets Act of 1968; Welfare and Pension Plans Disclosure Act; Narcotics Control Act.

Litigation under the 1954 Act has already been discussed. Other than the 1954 Act, none of the recent statutes containing the three preconditions for a grant of immunity has given rise to significant litigation concerning immunity practice or theory.

4. Informal Immunity and Formal-Grant Practices

For an immunity statute to be seen in total perspective it should be recognized that immunity is, and can be, effectively conferred other than by a legislatively authorized method. The ways may be roughly divided into grants which are unintentional, being judicially imposed, and intentional, as a result of prosecutoral agreement.

Unintentional immunity is frequently conferred as the result of the fact that exclusion of illegally-seized evidence and the fruits thereof is the sanction for a violation by government agents of constitutional (and possibly certain procedural) rights. Under present constitutional doctrine this use-restriction applies to information and leads obtained as the result of an illegal search or seizure, Weeks v. United States, 232 U.S. 392 (1913), failure to give Miranda warnings, Miranda v. Arizona, 384 U.S. 436 (1966), or otherwise wrongfully coercing or inducing a confession, Wilson v. United States, 162 U.S. 613 (1896), and possibly an unlawful arrest, Wong Sun v. United States, 371 U.S. 471 (1963). Wrongful inducement includes making an unauthorized promise that the person will not be arrested or otherwise prosecuted, Crawford v. United States, 219 F. 2d 207 (5th Cir. 1955). Although the prosecution may proceed upon untainted, and thus unsuppressed, evidence, in many cases the only evidence available is suppressible, resulting in complete immunity for the alleged offender. This consequence is the source of most of the controversy regarding the method of implementing constitutional protections: shall the criminal go free because the constable blundered? Immunity is also conferred when a law enforcement agency or the United States Attorney refrains from prosecuting in order to secure a witness's cooperation. This power of intentional grant of immunity is not based solely on considerations related to the bargain for information. The power is also exercised be law enforcement agencies when they decide to proceed against an offender civilly, administratively, or not at all, i.e., make no recommendation of criminal prosecution to the Department of Justice, or when the United States Attorney declines to prosecute even when the case is brought to his attention. This kind of immunity grant seemingly has been held valid, even though not authorized by statute. In one case a defendant, who was not the beneficiary of the immunity, argued unsuccessfully that the testimony of material witnesses should be suppressed as illegally seized-because it had been obtained by an informal (i.e., statutorily unauthorized) promise of immunity by law enforcement agents, United States v. Levy, 153 F. 2d 995 (3d Cir. 1946). Although the issue was raised in an odd way, it is perhaps unlikely that it would ever be raised by a defendant to whom it was intended to give immunity because the prosecution's breach of such bargains would undoubtedly decrease his chances of obtaining cooperation from others in the future.

Experience indicates that federal prosecutors and law enforcement agents often will try to avoid conferring immunity without express authority and will seek instead to confer some other benefit on a cooperative witness, c.g., reduction of the charge or punishment. But occasions do arise when a person on the fringe of a criminal enterprise will be told, in effect, that he will not be prosecuted at all if he cooperates; and frequently such persons will be named in an indictment as coconspirators but not as defendants.

An immunity statute may thus be seen as having only corollary utility in certain kinds of conventional criminal investigations. It will, of course, be helpful where the potentially cooperative witness, through his attorney, seeks the

certainty which comes from compliance with a statute; and the making of a record will avoid credibility contests. But, as noted above, this value may be only marginal, since there are other pressures upon the prosecutor to hold to his promise.

The statute's greatest value lies in overcoming the resistance of the witness who does not want to cooperate at all, regardless of the inducement, since immunity is the only way to overcome a persistent claim of privilege, Hooley v. United States, 209 F. 2d 234, 235 (1st Cir. 1954) (United States Attorney's promise of immunity to witness claiming privilege before grand jury was irrelevant in determining sufficiency of evidence in a prosecution for contempt). Of course, even the threat of prosecution for refusal to answer truthfully may not always result in cooperation.

In New York State, the jurisdiction which appears to have made the greatest use of immunity statutes, statutory immunity has been used frequently as a tool in investigation of official bribery, a consensual crime. Use of an immunity provision often leads first to prosecutions for perjury or contempt (for refusal to answer or the giving of evasive answers). Under the pressure of such prosecution, or the threat of punishment after conviction, the witness cooperates against others. In the Southern District of New York, use of existing federal immunity statutes has increased in recent years, particularly in narcotics and labor cases; but often such use has resulted in prosecutions for contempt.

The significance of the experience with nonstatutory immunity is threefold. First, it supports broad grants of responsibility to the Department of Justice and the agencies to decide when immunity should be conferred, since, even as to inquiries in which they do not have express authority, they can presently give immunity, although in a manner which may not be satisfactory to all parties. This factor also supports the simplicity of the procedures now being recommended, which are analyzed in detail in Part III, infra. Second, the change to a use-restriction from absolute immunity should not add appreciably to the difficulties which the government already faces in deciding whether there is sufficient untainted evidence upon which to prosecute, and in litigating the taint issue. These difficulties are likely to continue to occur in much greater rumber in cases involving suppression of illegally-seized evidence than in the few where suppression is sought because of immunity conferred intentionally under a statute. Third, in the few cases where the witness's cooperation might be stinted because of the limited scope of the immunity conferred under the statute, the residual power of the prosecutor or agency not to prosecute in any event could be relied upon to obtain the fullest cooperation.

1. Introduction

III. ANALYSIS OF PROPOSED REFORMS

The proposed reforms substantially alter the form, and to some extent the substance, of present federal immunity legislation. In place of numerous specialized immunity provisions tied to particular substantive statutes, the reform envisions a single, integrated immunity provision applicable to compulsory testimony situations functionally classified into three situations: court-grand jury proceedings; formal administrative hearings whether of an investigatory, rulemaking, or adjudicatory type, and whether handled by an independent agency or within the executive branch; congressional investigations. The three main subdivisions of the draft statute, in terms of immunity procedure, are keyed to these three types of proceedings.

Despite some differences in procedure, the immunity provisions for all three of these types of proceedings have a number of common elements. A witness claim of his privilege against compulsory self-incrimination is a precondit on of obtaning immunity in all situations. The central concept of "immunity" is modified, in accord with recent judicial clarifications of the Fifth Amendment, so that the protection offered the witness is a restriction against incriminating use of his disclosures, or their fruits. Thus, in the wording of the statute, userestriction language replaces the present absolute immunity language. Under the proposed use-restriction language the possibility of criminal prosecution based on independent evidence remains open, as is the case when a witness plea of the Fifth Amendment is left undisturbed by a compulsory testimony provision. Under the existing absolute immunity language to be replaced, a witness obtains in effect a blanket pardon, exonerating him in regard to all offenses related to his testimony or production of other information.

In accord with the spirit of the use-restriction concept, and better to conform immunity provisions to the language of the Fifth Amendment, the protection extends to "any criminal case." The "penalty or forfeiture" phrase found in existing immunity statutes is deleted.

To minimize the possibility that a conferment of immunity (use-restriction) in order to support the "public interest" being promoted by one agency, will subvert the "public interest" being promoted by another agency, various special clearance requirements are included in the draft statute. In all instances there is provision for notice to a central law enforcement point, the Attorney General of the United States. Beyond this point there are some differences in procedure for authorizing a direction to testify under the immunity provision.

For court-grand jury matters, i.e., the primary area of Department of Justice law enforcement, there must be a "public interest" certification by the United States Attorney, approval by the Attorney General, and application to a United States District Court for an authorizing direction. For administrative hearing matters, the public interest assessment, and the power to issue a direction to testify, are left with such agency officials as may be specified by Congresssubject, however, to a notice provision so that the Attorney General may make a remonstrance if one of his own programs or any program known to him would be adversely affected by the direction, testimony, and consequent use-restriction. For congressional investigations the present requirement of application to a United States District Court is retained, but clarified, and again there is a provision for notice to the Attorney General and possible remonstance by him. There is an optional provision in all instances for obtaining a direction to testify, prior to the actual plea of the Fifth Amendment by a witness at the inquiry. 2. Requirement that Witness Claim His Constitutional Privilege as a Precondition of Immunity

The proposed statute requires that as a precondition of immunity a witness claim his privilege against compulsory self-incrimination, as do virtually all recent immunity statutes. This avoids the possibility of gratuitous, and even unknown, grants of immunity which may occur under automatic immunity statutes such as the initial and frequently copied Interstate Commerce Commission immunity provision of 1893. All commentators recommend, and principle and logic seem to dictate, abolishing all "automatic" immunity language and adopting "claim language" as the proper mode for a compulsory testimony act. The "claim" issue, and its status under existing statutes, and relevant cases, are discussed above in Part II-3-(b). There is no constitutional problem here. It is simply a matter of Congressional choice.

3. Conversion from "Absolute Immunity" Language to "Use-Restriction" Language

The traditional "any transaction. . ." phrase in federal immunity statutes since 1893 is modified by substituting for it the "neither the testimony nor phrase. There is language in Counselman v. Hitchcock, 142 U.S. 547 (1892), supporting the constitutional sufficiency of the latter phrase which operates like an exclusionary rule and bars use of the compelled disclosure or its fruits, i.e., it is a use-restriction rule. The Court identified the vice in the statute at issue in Counselman as follows:

"It [the statute] could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted." 142 U.S. at 564.

This same point that the statute at issue was not co-extensive with the selfincrimination privilege because it did not protect against the indirect use of compelled testimony, was repeated again in the summary at the end of the opinion. 142 U.S. at 586.

There also is a dictum in Counselman which can be read as requiring that an immunity statute go beyond use-restriction and absolutely bar future prosecution even with wholly untainted independent evidence, thus offering a “gratuity to crime" (or, more properly stated, an excessive pardon). The dictum, which appears in the summary at the end of the opinion and is not related to the userestriction discussion which dominates the bulk of the opinion, reads as follows:

"[The statute in question] 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." 142 U.S. at

585-586.

(a) Recent Developments in Self-Incrimination Theory

The Court's intellectual confusion in Counselman, not clarified in Brown v. Walker, 161 U.S. 591 (1896), has not been a featured aspect of discussions of Fifth Amendment and immunity statute theory until recently. However, the new self-incrimination and immunity cases of the past few years have raised fresh questions concerning the constitutional requirements for a valid immunity statute, in the light of the two overall but competing considerations of giving the witness his just due under the Fifth Amendment while at the same time preserving the interest in effective prosecution of law breakers. Use restriction has emerged as the central theme of the Fifth Amendment, analogous to the case development under the Fourth Amendment. Of particular importance are the Supreme Court's decisions, opinions and dicta in Murphy v. Waterfront Commission, New York Harbor (378 U.S. 52, 84 S. Ct. 1594 (1964)) and Gardner v. Broderick and its companion case, Uniformed Sanitation Men Ass'n. v. Commissioner of Sanitation (88 S. Ct. 1913, 1917 (1968)).

(1) Murphy v. Waterfront Commission.-The Murphy case, following on the heels of Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964), which had made the Fifth Amendment applicable to the states, held that as a consequence of the new scope of the Fifth Amendment the federal government must be barred from prosecutorial use of state-compelled "testimony and its fruits."

This rule is based not on state legislative power to immunize against federal prosecution but rather on the operation of the Fifth Amendment itself. Such an exclusionary rule, judicially announced and based on the Fifth Amendment, is parallel to the judicially announced and judicially policed exclusionary rule derived from Mapp v. Ohio, 367 U.S. 643 (1961), as a sanction against Fourth Amendment violations. In a sense it may be called "judicial immunity," and it is based on a use-restriction concept derived directly from the Constitution. Unlike statutory immunity, there is, first, no bar to use of independent evidence; and second, no absolute bar to prosecution for a transaction which relates substantially to the improperly coerced disclosure. Thus, under recent Fifth Amendment jurisprudence developed in such additional cases as Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967), and Spevack v. Klein, 385 U.S. 511, 87 S. Ct. 625 (1967), the due process "coerced confession" line of cases, the Fourth Amendment cases, and the Fifth Amendment line of cases seem to coalesce in result, even though there may be underlying doctrinal differences.

Although in Murphy there was a state immunity statute which by its terms purported to extend immunity concerning "any criminal proceeding," the Supreme Court apparently agreed with the defendants' theory that the statute did not purport to extend to federal incrimination because it had been enacted before Malloy had nationalized the Fifth Amendment. However, the Supreme Court did not quote or discuss the statute nor rely on it for its holding. The Court's holding in Murphy is based rather on the Fifth Amendment itself, interpreted in the context of the needs of the federal system.

Justice Goldlberg phrased the holding of the Court as follows:

"... we hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We couclude moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits." (378 U.S. at 79.) (Emphasis added.)

Justice Goldberg's footnote for this statement, further explaining his meaning, read as follows:

"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 its evidence is not tainted by establishing that it had an independent, legitimate source for the disputed evidence." (Ibid.)

Justice White, concurring, made a similar but more explicit statement concerning the scope of the constitutionally required protection in this situation. He said:

"The Constitution does not require that immunity go so far as to protect against all prosecutions to which the testimony relates, including prosecutions of another government, whether or not there is any causal connection between the disclosure and the prosecution or evidence offered at trial. In my view it is possible for a federal prosecution to be based on untainted evidence after a grant of federal immunity in exchange for testimony in a federal criminal investigation. Likewise it is possible that information gathered by a state government which has an important but wholly separate purpose in conducting the investigation and no interest in any federal prosecution will not in any manner be used in subsequent federal proceedings, at least "while this court sits" to review invalid convictions. Panhandle Oil Co. v. State of Miss. ex rel. Knox, 277 U.S. 218, at 223, 48 S. Ct. 451, 72 L. Ed. 857 (Holmes, J., dissenting). It is precisely this possibility of a prosecution based on untainted evidence that we must recognize. For if it is meaningful to say that the Federal Government may not use compelled testimony to convict a witness of a federal crime, then, of course, the Constitution permits the State to compel such testimony . . . I believe the State may compel testimony incriminating under federal law, but the Federal Government may not use such testimony or its fruits in a federal criminal proceeding. Immunity must be as broad as, but not harmfully and wastefully broader than the privilege against self-incrimination." (378 U.S. at 106-107.) (Emphasis added.)

(2) Garrity-Spevack-Stevens-Blue-A further series of recent cases, with one caveat, support the use-restriction concept. In two of them the special comment of Justice Fortas, concurring, is especially noteworthy: Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967), and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625 (1967).

Both Garrity and Spevack are relevant to the question of the breadth which an immunity statute must have to be constitutional. In Garrity the Court held that a holder of position of public trust (policeman questioned regarding ticket fixing) could not be criminally convicted on the basis of information he had divulged under threat of dismissal if he invoked the privilege against selfincrimination and remained silent. In Spevack the Court held that an attorney who was the subject of an ambulance-chasing investigation could not be disbarred for pleading self-incrimination and refusing to testify and produce his financial records.

It may be noted that in Garrity the issue was not discharge but use in a criminal prosecution against a policeman of testimony which he had been induced to give under threat of discharge if he persisted in a self-incrimination plea and remained silent. In his comment on the Garrity holding, expressing the thought that the policeman could have been discharged for his silence, Justice Fortas wrote:

"This Court has never held, for example, that a policeman may not be discharged for refusal in disciplinary proceedings to testify as to his conduct as a police officer. It is quite a different matter if the State seeks to use the testimony given under this lash in a subsequent criminal proceeding." (Justice Fortas concurring opinion in Spevack, commenting on Garrity, 385 U.S. at 519, 87 S.Ct. at 630. Justice Fortas' vote was needed for a majority.)

The Fortas statement focuses on use-restriction in the context of incriminating use (criminal case), ad qualifies this broad statement of Justice Douglas writing for the Court in Garrity:

"The choice given appellants was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent," (385 U.S. at 497, 87 S.Ct. at 618.)

Further, in his opinion for a unanimous Court in June, 1968 in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913 (1968), Justice Fortas repeated this statement and its concept of criminal use-restriction.

It is true, of course, that Spevack v. Klein, unlike Garrity, did not involve criminal prosecution but disbarment, and the Court extended protection to the attorney. However Spevack can be given a close reading, as shown by a recent article on the effect of the case on state licensing authorities. Reviewing postSpevack cases in New York, the Administrative Counsel to the Committee on Grievances of the Association of the Bar of the City of New York concludes