John Marshall Harlan II

“ The Questions remain whether such a plea of the privilege may ever justify dismissal of an indictment, and if so whether this is such an instance.
Federal Rule of Criminal Procedure 12 (b) (1) states that: 'Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.' A defense is thus 'capable of determination' if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense. ”

“ The District Court's other basis for dismissal was that appellee's Fifth Amendment privilege necessarily would provide a complete defense to the prosecution. We have held today in Leary that the privilege does provide such a defense unless the plea is untimely, the defendant confronted no substantial risk of self-incrimination, or the privilege has been waived. ”