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Application of Fifth Amendment to U.S. Constitution in international context—fear of foreign prosecution as ground for invoking privilege against self-incrimination—relevance of growing international law enforcement cooperation—role of U.S. judiciary in foreign relations

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
Diane Marie Amann
Diane Marie Amann
Affiliation:
University of California, Davis, School of Law
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Extract

United States v. Balsys. 118 S.Ct. 2218.

U.S. Supreme Court, June 25, 1998.

Resolving a long-open question, the U.S. Supreme Court held in this 7-2 decision that a witness in a domestic proceeding may not invoke the constitutional privilege against self-incrimination if the witness fears that the testimony may be used in a prosecution outside the United States. Although grounded in domestic law, the three opinions in Balsys reveal tension between the judiciary's traditional deference to the political branches in foreign relations matters and its concern over the risk that individuals subject to prosecution abroad will suffer deprivation of liberty because of that deference.

Type
International Decisions
Information
American Journal of International Law , Volume 92 , Issue 4 , October 1998 , pp. 759 - 764
Copyright
Copyright © American Society of International Law 1998

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References

1 118 S.Ct. 751 (1998), granting cert, to 119 F.3d 122 (2d Cir. 1997), vacating 918 F.Supp. 588 (E.D.N.Y. 1996). On facts virtually identical to those in Balsys, the Eleventh Circuit, in a 5-1-5 en banc opinion, had rejected an invocation of the privilege. United States v. Gecas, 120 F.3d 1419 (11th Cir. 1997), cert. denied, 118 S.Ct. 2365 (1998). This conflict reflected a decades-old division of authority in the lower federal courts. See Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 45 UCLA L. Rev. 1201, 1224–42 (1998).

2 118 S.Ct. 2218, 2222–23.

3 Id. at 2223–25 (discussing, inter alia, Jack v. Kansas, 199 U.S. 372 (1905) (affirming contempt sentence against immunized witness who refused to testify in state proceeding out of fear of federal prosecution), and United States v. Murdock, 284 U.S. 141 (1931) (holding that witness could not decline to testify in federal proceeding because of fear of state prosecution)). The Balsys Court distinguished Ballmann v. Fagin, 200 U.S. 186 (1906), and United States v. Saline Bank of Va., 26 U.S. (1 Pet.) 100 (1828), two early opinions that appeared to support extending die privilege across jurisdictions. 118 S.Ct. at 2225–26.

4 118 S.Ct. at 2224–25 (quoting discussion of Queen v. Boyes, 1 Best & Smith 311, 121 Eng. Rep. 730 (Q.B. 1861), and King of Two Sicilies v. Willcox, 1 Simons N.S. 301, 61 Eng. Rep. 116 (1851), in Murdock, 284 U.S. at 149).

5 378 U.S. 52, 77–78 (1964).

6 118 S.Ct. at 2226–28.

7 Malloy v. Hogan, 378 U.S. 1 (1964), overruling Twining v. New Jersey, 211 U.S. 78 (1908).

8 Murphy, 378 U.S. at 55 (internal quotation marks omitted).

9 118 S.Ct. at 2227–28.

10 Id. at 2228.

11 See 378 U.S. at 58–61 (discussing, inter alia, United States v. McRae, 3 L.R. Ch. 79 (1867); Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157 (1750); East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749)).

12 Id. at 55.

13 See 118 S.Ct. at 2228, 2231. Justices Scalia and Thomas refrained from joining either the majority's explanation of why values enumerated in Murphy did not require extension of the privilege to the foreign-prosecution context or its subsequent articulation of a possible exception to the general rule against extraterritorial application.

14 Id. at 2228–30.

15 Id. at 2232–33.

16 Id. at 2233 (discussing Murphy, 378 U.S. at 55–56).

17 Id. at 2233–34.

18 Id. at 2234 n.16 (quoting Amann, supra note 1, at 1259).

19 Declining to endorse the Second Circuit's conclusion that the benefits to Balsys outweighed the costs asserted by the Government, the majority wrote:

Because foreign relations are specifically committed by the Constitution to the political branches, U.S. Const, Art. II, §2, cl. 2, we would not make a discretionary judgment premised on inducing them to adopt policies in relation to other nations without squarely confronting the propriety of grounding judicial action on such a premise.

118 S.Ct. at 2234.

20 Id. at 2235.

21 Id.

22 Id.

23 Id. at 2235–36.

24 Id. at 2236.

25 Id. at 2237. Justice Ginsburg cited her earlier statement that “ ‘just as our flag carries its message … both at home and abroad, so does our Constitution and the values it expresses.’ “ Id. (quoting DKT Mem'l Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275, 307–08 (D.C. Cir. 1989) (R. B. Ginsburg, J., concurring in part and dissenting in part) (citation and internal quotation marks omitted)).

26 Id. at 2237–45.

21 Id. at 2243.

28 Murray v. United Kingdom, 22 Eur. H.R. Rep. 29, 60, para. 45 (1996) (Eur. Ct. H.R.). The Court in Balsys quoted this reporter for the proposition that the privilege is “ ‘at best an emerging principle of customary international law,’ “ 118 S.Ct. at 2234 n.16 (quoting Amann, supra note 1, at 1259). That position is not universally held. See, e.g., Bryan William Horn, Note, The Extraterritorial Application of the Fifth Amendment Protection against Coerced Self-incrimination, 2 Duke J. Comp. & Int'l L. 367, 387 (1992) (“the right against self-incrimination is at least a norm of customary international law”). Moreover, the Court overlooked the precise argument, that although the concept of a right to silence is generally accepted within the international community, disagreement remains on the precise contours of that right. See Amann, supra note 1, at 1259. Evidence of the growing acceptance of such a right is reflected not only in opinions like Murray, but also in international instruments. See Rome Statute of the International Criminal Court, adopted July 17, 1998, by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Art. 67(g) ‹http://www.esteri.it/notizie/documit/d170798.htm› Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex (Nov. 8, 1994), Art. 20(g), reprinted in 33 ILM 1598, 1610 (1994); Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/25704, annex (1993), Art. 21(g), reprinted in 32 ILM 1159, 1199 (1993). Thus, the Court erred in stating that there is “nothing comparable” to the privilege in supranational law. See Balsys, 118 S.Ct. at 2234 n.16.

29 See Amann, supra note 1, at 1261–72.

90 See id. at 1273–92.

31 For detailed descriptions of the extent of the OSI's effort to help secure prosecution of Balsys and the witness in the companion Eleventh Circuit case, see United States v. Balsys, 119 F.3d at 131 (Calabresi, J., joined by Block, J.); id. at 143 (Meskill, J., concurring in result); United States v. Gecas, 120 F.3d 1419, 1466 n.51 (11th Cir. 1997) (Birch, J., dissenting); id. at 1483–84 (Carnes, J., dissenting).

32 504 U.S. 655 (1992) (holding that the Constitution was not violated when Mexican officials, at the behest of U.S. agents, kidnapped a Mexican national in Mexico and delivered him for trial in the United States).

33 494 U.S. 259 (1990) (holding that U.S. agents' extraterritorial search against nonresident alien does not offend Fourth Amendment to U.S. Constitution).