United States v. Balsys

PETITIONER: United States
LOCATION: The White House

DOCKET NO.: 97-873
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 524 US 666 (1998)
ARGUED: Apr 20, 1998
DECIDED: Jun 25, 1998

Ivars Berzins - Argued the cause for the respondent
Michael R. Dreeben - Argued the cause for the petitioner
Were Aloyzas Balsys - for murder, the Fifth Amendment would prohibit the Federal Government from compelling that testimony

Facts of the case

Aloyzas Balsys was subpoenaed by the Justice Department's Office of Special Investigations (OSI) to testify about his wartime activities between 1940 and 1944 and his subsequent immigration to the United States. Fearing prosecution by a foreign nation, Balsys refused the subpoena by claiming his Fifth Amendment privilege against self-incrimination. On appeal from an appellate court's reversal of a district court ruling granting OSI's subpoena enforcement petition, the Supreme Court granted the United States certiorari.


Is fear of foreign prosecution sufficient grounds to justify the invocation of the Firth Amendment privilege against self-incrimination?

Media for United States v. Balsys

Audio Transcription for Oral Argument - April 20, 1998 in United States v. Balsys

William H. Rehnquist:

We'll hear argument now in Number 97-873, United States v. Balsys.

Mr. Dreeben.

Michael R. Dreeben:

Mr. Chief Justice, and may it please the Court:

The question in this case is whether the Fifth Amendment privilege against compelled self-incrimination may be invoked based on a fear of foreign prosecution.

For three main reasons, we submit that it may not.

First, the prohibition against compelling a person to be a witness against himself applies only in a criminal case.

By that phrase, the Framers meant a Federal criminal case.

The Self-Incrimination Clause is one of a series of rights set forth in the Fifth and Sixth Amendments that are naturally read to govern criminal trials in this country, not foreign criminal cases.

Second, history teaches--

William H. Rehnquist:

Mr. Dreeben, in the Arndstein case the Court extended the privilege outside of the scope of a criminal trial, didn't it?

Michael R. Dreeben:

--That is correct, Mr. Chief Justice, in this respect.

The privilege may be claimed by a witness in any proceeding, regardless of whether the proceeding is civil, criminal, or administrative, so long as what the witness ultimately fears is incrimination in a criminal case.

The proper referent to determine whether the Self-Incrimination Clause may be invoked therefor is not the type of proceeding in which it is claimed in this country, but rather the type of proceeding in which the witness actually fears incrimination, and that point is borne out by the history of the clause.

Ruth Bader Ginsburg:

Mr. Dreeben, before you proceed further, would you tell me why 18 U.S.C. 1001 isn't in this picture?

It did involve a false statement to the United States, so why is it seemed to be conceded that there is no criminal case in the United States?

Michael R. Dreeben:

There could be, Justice Ginsburg, if these statements had been made within a period prosecutable under the statute of limitations, but the original statements that respondent made to gain entry to the United States were in 1963, and the general 5-year statute of limitations has long since run on any prosecution for false statements based on that event and, as a result, the witness is not in a position to claim a fear of domestic incrimination based on any contradiction with his prior statements and I think it's conceded in this case that the only claim of self-incrimination is based on what a foreign power might do if it had custody over respondent and instituted a case.

There is no claim in this case that there is a domestic fear of prosecution by either the State or the Federal Government based on the statements that he has made.

Now, the history of the Self-Incrimination Clause in this country points strongly to the conclusion that the words, any criminal case, in the Fifth Amendment refer only to a Federal criminal case.

In the era before this Court extended the--

Antonin Scalia:


You just told us that that refers to the case in which he is asked to testify, not the case in which he would presumably incriminate himself, right?

Michael R. Dreeben:

--I'm not sure, Justice Scalia, whether I was clear before, so let me try to make it clear.

Antonin Scalia:

All right.

Michael R. Dreeben:

The case in which the incrimination must take place--

Antonin Scalia:


Michael R. Dreeben:

--must be a criminal case, by which the Fifth Amendment in our view means a Federal criminal case.

The privilege can be claimed by a witness in any proceeding in which he is asked to give compelled testimony, not based on his concerns about what might happen to him in that proceeding, but based on concerns about what might happen to him in a criminal case down the road.

Antonin Scalia:

I understand, but I don't understand how you read the phrase, in any criminal case.

No person shall be compelled in any criminal case to be a witness against himself.

Where is the compulsion?