Arthur Goldberg

“ The State questioned the application of the statute to petitioner's testimony and the constitutionality of the statute if construed to apply to state courts. The Court, in an opinion joined by seven members, made the following significant statement: 'a witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute.' 347 U.S., at 181, 74 S.Ct., at 445. ”

“ It follows that petitioners here may now be compelled to answer the questions propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court's decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal prosecution. We have now overruled Feldman and held that the Federal Government may make no such use of the answers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. ”

“ That this dictum related solely to the 'legal immunity' under the Due Process Clause of the Fourteenth Amendment is apparent from the fact that it was regarded, five weeks later in Ballmann v. Fagin, 200 U.S. 186, 26 S.Ct. 212, 50 L.Ed. 433, as wholly inapplicable to cases decided under the Self-Incrimination Clause of the Fifth Amendment. [9] Ballmann had been held in contempt of a federal court for refusing to answer certain questions before a federal grand jury. ”

“ The Government assumed that it was settled that a valid federal immunity statute would have to protect against state prosecution. It never suggested, therefore, that immunity from federal prosecution was all that was required. Appellant similarly assumed, without argument, that the Constitution required immunity from state conviction as a condition of requiring incriminating testimony in a federal court. Thus the critical constitutional issue-whether the Fifth Amendment protects a federal witness from incriminating himself under state law-was not briefed or argued in Hale v. ”

“ In every 'whipsaw' case, either the 'compelling' government or the 'using' government is a State, and, until today, the States were not deemed fully bound by the privilege against self-incrimination. Now that both governments are fully bound by the privilege, the conceptual difficulty of pinpointing the alleged violation of the privilege on 'compulsion' or 'use' need no longer concern us.↑ In The Queen v. ”

“ The privilege against self-incrimination 'registers an important advance in the development of our liberty-'one of the great l ndmarks in man's struggle to make himself civilized." Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511. [4] It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice ”

“ The second-that 'in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated,' supra at 60-61-is equally inapplicable in our country where the witness is generally within 'the jurisdiction' of the State under whose law he claims danger of incrimination, and where, if he is not, the State may demand his extradition. The second case relied on in Hale v. Henkel, supra The Queen v. ”

“ Schweitzer, 357 U.S. 371, 385, 78 S.Ct. 1302, 1310 (dissenting opinion of MR. JUSTICE BLACK) . This has become especially true in our age of 'cooperative federalism,' where the Federal and State Governments are waging a united front against many types of criminal activity. ”

“ Henkel. Nor was its resolution necessary to the decision of the case, for the Court could have decided the relevant point on the authority of Brown v. Walker, supra, which had held that a similar federal immunity statute protected against state prosecution. Nevertheless, the Court went on to say:
'The question has been fully considered in England, and the conclusion reached (by the courts of that country) that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. Queen v. Boyes, 1 Best & S. 311; King of the Two Sicilies v. ”