Kastigar v. United States

RESPONDENT: United States
LOCATION: Illinois State Penitentiary at Menard, Illinois

DOCKET NO.: 70-117
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 406 US 441 (1972)
ARGUED: Jan 11, 1972
DECIDED: May 22, 1972

Erwin N. Griswold - Argued the cause for the United States
Hugh R. Manes - Argued the cause for the petitioners

Facts of the case

Kastigar cited his Fifth Amendment protection against self-incrimination in refusing to testify before a grand jury, even though prosecutors had granted him immunity from the use of his testimony in subsequent criminal proceedings. He was found in contempt of court for failing to testify.


Can the government, by granting immunity from the use of compelled testimony in future prosecutions, force a witness who invokes the Fifth Amendment to testify?

Media for Kastigar v. United States

Audio Transcription for Oral Argument - January 11, 1972 in Kastigar v. United States

Warren E. Burger:

We will hear argument next in Number 70-117, Kastigar against the United States.

Mr. Manes you may proceed whenever you are ready.

Hugh R. Manes:

Mr. Chief Justice and may it please the Court.

This case involves the constitutionality of the federal use immunity statute Title 18 Sections 6002 and 6003.

The question presented in this case, whether federal use immunity as conferred by Section 6002 is coextensive with the Fifth Amendment privilege against self-incrimination.

This case arises from the imprisonment for civil contempt of the petitioners, both of them, by the federal district Court or the central district of California for refusing to answer questions put to them by the -- before the grand jury for violations or alleged violations of the selective service law.

The petitioners were accorded use immunity by the United States Attorney and ordered to answer by the United States District Court pursuant to that immunity which was conferred under Section 6002 and they declined to answer the questions in any event invoking their privilege on their theory that the immunity offered by 6002 was incomplete.

Petitioners contend here that only transactional immunity will satisfy the Fifth Amendment privilege.

We take that position for several reasons.

First, the history and development of the privilege and the logic compel absolute immunity be granted and nothing less.

Secondly, we argue that so called tainted evidence, rules required for the administration and control and supervision of the use in these statute are inadequate.

They cannot guarantee the absolute immunity which the Fifth Amendment demand requires.

Thirdly, we take the position that the statutorial language of 6003 so limits the Court power as to prevent a fair and reasonable application of use immunity and in particularly prevent adequate Court supervision of the use of that particular immunity.

Finally we argue that use immunity conferred by 6002 coupled with existing statute for example the Jenks Act rule 16 and other provisions.

As such has to deprive the witness of due process and abridge his right guarantee him by the Fourth and Fifth Amendments and particularly to render these immunity statutes at bar unfair as against the subject witness who may become an accused person.

Before I proceed with that argument, I would like to point out something about this particular statute that we are dealing with which is in response to questions put to prior counsel.

This I would respectfully submit, is use immunity statute that has no limitations indeed it is called a general immunity law.

It is not limited in its application to simply multi-defendant cases nor is it limited in any way to any particular kind of offense.

It permits immunity to be granted and the witness to be compelled to answer and virtually, most if not all offenses.

And certainly as again, whether the person is an individual and charged or suspected of only an individual crime as well as of course, the multiple defendant offense in this kind of situation.

And we submit that where you have a statute that is as broad as the statute at bar from a prosecution point of view if it is there, it is going to be used.

And it is limited in its use.

It has to be approved by somebody in Washington at least besides the assistant attorney general level or it has to be ascertained.

It has to be the authority for giving, immunity must be approved by the attorney general or its authorized representative, but I would submit Your Honor that under Section 6002 has to be as –

The attorney general, the deputy or one of the assistants here in Washington, do I read the statute correctly?

Hugh R. Manes:

Yes sir.

And is that true also with respect to subsection 3 of 6002 when it involves questions before a committee of all the houses of congress.

Hugh R. Manes:

Well, Your Honor I would assume so but I am not addressing myself to the question of scope as--

Well, I am just inquiring as to the scope of –-

Hugh R. Manes:

I would assume Your Honor that that would be true in both cases but I could not represent as to its effect with regard to the house or congress might certainly confirm that that would be true as regards immunity for a grand jury.