David S. Rudolf, a Director of NACDL, is a principal in the firm of Rudolf & Maher, P.A., Chapel Hill, NC.
Thomas K. Maher is a principal in the firm of Rudolf & Maher, P.A., Chapel Hill, NC.
The Fifth Amendment means different things to different people, or different courts. To the Second Circuit, the Fifth Amendment plays a "role in preserving an individual's privacy and dignity," preserving our criminal justice system and protecting the individual citizen against governmental overreaching. The importance of the Fifth Amendment is illustrated by the court's willingness to defend its safeguards even when the only threat to the individual is prosecution by a foreign government. To the Third Circuit, the Fifth Amendment is an annoyance that may hinder the government in establishing a defendant's guilt of the crime, but is no impediment to the more enjoyable act of imposing sentence; the safeguards of the Fifth Amendment do not even apply to the sentencing proceeding of a defendant who plead guilty. There is little that can be said to square these two decisions, other than the obvious difference between their respective views of the Fifth Amendment.
The proceedings in United States v. Balsys, 119 F.3d 122 (2nd Cir. 1997), were relatively unusual. Balsys is a resident alien who entered the United States in 1961, after leaving his native Lithuania. In applying for an Immigrant Visa and Alien Registration, Balsys claimed to have served in the Lithuanian army from 1934 until 1940, and then to have been in hiding until 1944. Balsys signed this application, which contained a warning that false statements could lead to prosecution or deportation. After a lengthy residence in the United States, Balsys came under investigation by Department of Justice's Office of Special Investigations (OSI). OSI was created to investigate, and deport, suspected Nazi war criminals, and to share inculpatory evidence with foreign nations. OSI developed evidence that Balsys assisted the Nazis as a member of the Lithuanian Security Police. During its investigation, OSI issued an administrative subpoena to Balsys seeking testimony and production of documents.
Balsys appeared at the deposition, but asserted the Fifth Amendment in response to questions. The district court ordered Balsys to testify. United States v. Balsys, 918 F. Supp. 588 (1996). Significantly, the district court found that Balsys had a real and substantial danger of foreign prosecution by both Lithuania and Israel, including the risk of a capital prosecution in Israel, and that any testimony given by Balsys to OSI would be disclosed to these foreign governments. Indeed, part of OSI's mandate is to "maintain liaison with foreign prosecution, investigation and intelligence offices." OSI has collected and shared incriminating evidence with Israel in the past.
The district court, nonetheless, held that Balsys could not raise the Fifth Amendment in response to questions from OSI. Balsys did not face any possible domestic prosecution, and the potential deportation proceedings were civil in nature. The lower court concluded that the fear of foreign prosecution was not covered by the Fifth Amendment. The court relied upon the decision in United States v. Lileikis, 899 F. Supp. 802 (D. Mass. 1995), which rejected fear of foreign prosecution as a basis for a Fifth Amendment claim on the ground that "[i]t would be an unacceptable affront to the sovereignty of the United States if the operation of its laws could be stymied by the desire of a foreign government to prosecute the same witness." The district court believed that the fundamental purpose of the Fifth Amendment was to prevent governmental overreaching, and saw no such overreaching when the government was pursuing a valid interest in enforcing domestic law.
The Second Circuit reversed, after an extended and thoughtful analysis of the multiple purposes served by the Fifth Amendment, of which governmental overreaching was only one. The court began with the recognition that there was no direct, controlling authority from the United States Supreme Court, or from the Second Circuit itself. In Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52 (1964), the Court held that the Fifth Amendment protects a witness in one domestic jurisdiction against being compelled to give testimony that could be used to convict him in another domestic jurisdiction. The issue whether this rational would extend to a witness in a domestic proceeding who feared foreign prosecution was presented to the Court in Zicarelli v. New Jersey State Comm's of Investigation, 406 U.S. 472 (1972), but was not decided as the Court found that no real and substantial risk of foreign prosecution was present.
The circuit courts that have considered the issue have come to divergent conclusions. The Fourth and Tenth Circuits have held that fear of foreign prosecution simply does not justify the assertion of the Fifth Amendment privilege against self-incrimination. See United States v. (Under Seal), 807 F.2d 374 (4th Cir. 1986); In re Parker, 411 F.2d 1067 (10th Cir. 1969). The Eleventh Circuit, in another case involving OSI, allowed a witness to assert the privilege based upon fear of foreign prosecution. United States v. Gecas, 50 F.3d 1549 (11th Cir. 1995), reh'g en banc granted, opinion vacated, 81 F.3d 1032 (11th Cir. 1996).
After analyzing the purpose of the Fifth Amendment, the Second Circuit determined that compelled testimony in the face of foreign prosecution sufficiently undermined the goals of the Fifth Amendment to justify its assertion. In reaching this conclusion, the court rejected the district court's holding that the fundamental purpose of the Fifth Amendment is to control governmental overreaching. Rather, the privilege against compelled self-incrimination serves a variety of related purposes, only one of which is the prevention of governmental overreaching. The Second Circuit began with an analysis of these purposes, as outlined by the Supreme Court in Murphy:
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; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.
Murphy, 378 U.S. at 55 (citations and internal quotation marks omitted).
We are told, therefore, that the Fifth Amendment serves three categories of purposes: it advances individual integrity and privacy, it protects against the state's pursuit of its goals by excessive means, and it promotes the systemic values of our method of criminal justice. Rather than attempt to determine a single cardinal purpose of the Fifth Amendment and consider the question before us only in relation to that purpose, as the district court essentially did, we are bound to recognize the multiple values that the Supreme Court has found the privilege against self-incrimination to serve, and to consider whether allowing those who have reasonable fear of foreign prosecution to invoke the privilege "promotes or defeats [these] policies and purposes." Id.
The Second Circuit went on to analyze the impact of compelled testimony, which could then be turned over to be used in a foreign prosecution, upon each of these goals. The court began by holding that "[p]ermitting a witness to invoke the Fifth Amendment to avoid incriminating himself in a foreign criminal case works to protect the dignity and privacy of the individual every bit as much as allowing the privilege in cases where the fear is of domestic prosecution." The trilemma of self accusation, perjury or contempt is "no less cruel nor any less imposed by a government within the United States merely because the testimony is ultimately used by a foreign nation."
The court believed that the systemic policies of the American criminal justice system that underlie the Fifth Amendment are simply unaffected by the use of compelled testimony by a foreign prosecutor. However, the court believed that use of testimony compelled by the federal government in a foreign prosecution presented the opportunity for governmental overreaching that the Fifth Amendment was intended to prevent. The court found that the district court underestimated the danger of governmental overreaching. Although "'conviction hunger' seems unlikely when the prosecution does not intend to eat," it is clear that the United States has a significant interest in assisting foreign prosecutions of persons in Balsys' position. Indeed, Balsys has a real and substantial fear of foreign prosecution largely because of efforts by OSI to collect and provide evidence for such a prosecution.
Significantly, the majority also rejected the notion, advanced by the district court, that a court should make a case-by-case analysis of whether the government was in fact seeking the testimony to advance a legitimate domestic goal, or was motivated by a desire to extract testimony for a foreign prosecution.
The same exact argument -- if it were valid -- would apply to invocations of the privilege in cases of fear of domestic prosecution. In almost all situations in which a witness in a civil proceeding claims the privilege, there exists a significant domestic law interest in obtaining the information. And yet the privilege perdures. Similarly, it is rare in such cases that one can show either overzealous prosecution or improper motivation. But no such showing is required. The privilege applies in such instances because the Fifth Amendment is fundamentally preventive. It prevents the government from using compelled testimony in the class of the cases -- criminal prosecutions -- in which the government's interest in the information might most tempt it to abuse witnesses. It does this at the cost of possibly limiting information gathering in other contexts, including civil cases. The point of the privilege is to pre-empt government abuse, rather than to seek to deter abuse by punishing it after it has occurred.
The question is not, therefore, as Lileikis suggests, whether the government can state some legitimate interest in the testimony it seeks, or whether governmental overreaching can be shown. It is rather whether cases involving fear of foreign prosecution -- as a class -- involve circumstances in which the application of the Fifth Amendment would pre-empt abuse and thereby promote constitutional goals. More directly, the question is whether, in this respect, cases involving fear of foreign prosecution differ significantly from cases involving domestic prosecutions. As we have noted, the United States will frequently have the same opportunity and the same temptations when a witness faces prosecution abroad as in cases involving fear of prosecution by another domestic jurisdiction. It follows that applying the privilege in both sets of cases achieves the same functions at the same costs. In both contexts, the Fifth Amendment inhibits the pursuit of government goals -- in spite of their legitimacy and importance -- to deny the government an inducement to use inappropriate methods to achieve those ends.
Judge Meskill, concurring, advocated a balancing approach to determine on a case-by-case basis whether the government's legitimate domestic goals outweighed the witness's Fifth Amendment rights. Fortunately, this position was not adopted by the majority. The majority did note, however, that the government was free to use Balsys' invocation of the Fifth Amendment as evidence in the civil deportation proceedings, thereby protecting the government's legitimate interest in enforcing domestic law.
The court also rejected the government's claim that, by answering the questions in 1961 in applying to enter this country, Balsys had waived forever his Fifth Amendment rights to refuse to answer these questions. The passage of time, and substantial changes in the law and other circumstances -- such as the recognition of Lithuania as an independent state in 1990 -- prevented the court from treating the initial application and the current deportation proceedings as simply a continuation of one proceeding.