406 U.S. 441 (1972)
In February 1971 petitioners were subpoenaed to appear before a United States grand jury in the Central District of California investigating violations of federal gambling and related laws.1 The government believed that petitioners were likely to assert their Fifth Amendment privilege against self-incrimination.2
Prior to the scheduled appearances, the government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U.S.C. §§ 6002-6003.3 Petitioners opposed issuance of the order, contending that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination and therefore was not sufficient to supplant the privilege and compel their testimony.4 The District Court rejected this contention and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity.5
Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination.6 They were brought before the District Court, and each persisted in his refusal to answer the grand jury's questions notwithstanding the grant of immunity.7 The court found both in contempt and committed them to the custody of the Attorney General until either they answered the grand jury's questions or the term of the grand jury expired.8
The Court of Appeals for the Ninth Circuit affirmed the contempt findings.9 The Supreme Court granted certiorari to resolve whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom or whether transactional immunity is necessary.10
Whether the United States Government may compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony?11
The immunity provided by 18 U.S.C. § 6002 is coextensive with the privilege against self-incrimination and is sufficient to compel testimony over a claim of the privilege.12 The statute prohibits the prosecutorial authorities from using the compelled testimony or any evidence derived from it in any subsequent criminal case against the witness, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.13 This use and derivative-use immunity is sufficient to supplant the privilege and compel the witness to answer.14 Transactional immunity is not required by the Constitution.15 The burden of proof rests on the government to show that any evidence offered against the witness in a subsequent prosecution was derived from a legitimate independent source.16
Yes. Petitioners received a grant of use and derivative-use immunity under 18 U.S.C. §§ 6002-6003 yet refused to testify before the grand jury.17 The District Court held them in contempt for that refusal, and the Ninth Circuit affirmed.18 The statute's prohibition on any direct or indirect use of the compelled testimony places the witness in substantially the same position as if the Fifth Amendment privilege had been claimed, rendering the immunity coextensive with the privilege and permitting compulsion of testimony.19
The government may compel the testimony with use and derivative-use immunity under the statute.20
Whether the scope of immunity provided by 18 U.S.C. § 6002 is coextensive with the scope of the Fifth Amendment privilege against compulsory self-incrimination?21
The immunity provided by 18 U.S.C. § 6002 is coextensive with the privilege against self-incrimination and is sufficient to compel testimony over a claim of the privilege because it prohibits use of the compelled testimony or any evidence derived from it in any subsequent criminal case against the witness except for perjury or false statement prosecutions.22
Yes. Petitioners were granted immunity under the statute after invoking the privilege before the grand jury.23 The District Court ordered them to testify, they refused, and contempt followed.24 The statute's explicit bar on direct and derivative use of compelled testimony matches the protection of the privilege by ensuring that no incriminating use can be made of the testimony or its fruits.25
The scope of immunity under 18 U.S.C. § 6002 is coextensive with the Fifth Amendment privilege.26
Whether transactional immunity rather than use and derivative-use immunity is required by the Constitution to compel testimony over a claim of the privilege?27
Transactional immunity is not required by the Constitution. Use and derivative-use immunity under 18 U.S.C. § 6002 is sufficient because it leaves the witness and the government in substantially the same position as if the privilege had been claimed, and the government bears the burden to prove any evidence is from an independent source.28
No. Petitioners received use and derivative-use immunity under the statute, refused to testify, were held in contempt by the District Court, and had that ruling affirmed by the Ninth Circuit.29 The Constitution does not require transactional immunity because the use-immunity prohibition adequately safeguards against compelled self-incrimination without granting full amnesty from prosecution, while shifting to the government the burden of proving an independent source for any evidence offered in a later case.30
Transactional immunity is not required by the Constitution to compel testimony.31
Related opinions on this issue
Justice Douglas dissented, maintaining that the Fifth Amendment requires transactional immunity to compel a witness to testify.32 He relied on Counselman v. Hitchcock, which held that a valid immunity statute must afford absolute immunity against future prosecution for the offense to which the question relates.33 Douglas argued that use immunity is inadequate because it allows the government to pursue leads from the compelled testimony and build a case against the witness, placing the witness at a serious disadvantage in proving taint.34
He viewed the majority's decision as an unconstitutional contraction of the Self-Incrimination Clause and would have reversed the judgment of the Court of Appeals to adhere to the transactional immunity requirement.35
Justice Marshall dissented on the ground that use and derivative-use immunity fails to place the witness in precisely the same position as if the privilege had been claimed because the government retains the ability to convict on evidence from a legitimate independent source.36 He argued that only transactional immunity provides the reliable guarantee required by the Fifth Amendment and that the burden-shifting rule accepted by the majority leaves the witness dependent on the good faith of prosecutors.37