Washington Law Review


W. J. M.


Kastigar refused to answer questions during federal grand jury proceedings despite an order commanding him to answer and granting him use and derivative use immunity, protecting him from the use of his testimony or any evidence derived from it. Kastigar's refusal to testify was premised on the theory that the grant of immunity extended to him was constitutionally deficient and that only transactional immunity could supplant his fifth amendment privilege. The trial court found Kastigar in civil contempt and ordered him confined pursuant to section 301(a) of the Organized Crime Control Act of 1970. The United States Court of Appeals for the Ninth Circuit sustained the contempt conviction, holding that the immunity statute was constitutional. In the Supreme Court, Kastigar argued that under the fifth amendment no immunity statute, however drawn, could be constitutional, further contending that even if a constitutional immunity statute could be drafted, no immunity less comprehensive than transactional immunity could supplant the fifth amendment privilege against self-incrimination. Affirming Kastigar's contempt conviction, the Supreme Court held that since "use and derivative use" immunity leaves the witness in substantially the same position as if he had claimed the fifth amendment privilege, it suffices to supplant that privilege. Kastigar v. United States, 406 U.S. 441 (1972).

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