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Scope of Taint Under the Exclusionary Rule of the Fifth Amendment Privilege Against Self-Incrimination

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Scope of Taint Under the Exclusionary Rule of the Fifth Amendment Privilege Against Self-Incrimination [Vol.114 SCOPE OF TAINT UNDER THE EXCLUSIONARY RULE OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION In the 1963 Term the United States Supreme Court handed down two landmark decisions affecting the privilege against self-incrimination.1 In Malloy v. Hogan the Court held that "the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgement by the States.. " 2 On the same day the Supreme Court delivered a second opinion which was a logical consequence of the Malloy decision. In Murphy v. Waterfront Commn - the Court extended the protection of the fifth amend- ment 4 to those cases in which the privilege against self-incrimination was claimed because of the possibility of prosecution in a foreign jurisdiction. 5 Prior to Murphy the so-called "dual sovereignties" rule dictated that a witness in one jurisdiction could not claim his privilege with respect to a foreign crime because "the powers of the General Government, and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and in- dependently of each other, within their respective spheres.. ,, 6 In overturning this rule, the Murphy Court reasoned that it would defeat the policies of the privilege against self-incrimination to allow a witness who now has the privilege under both state and federal jurisdictions to be "'whipsawed into incriminating himself under both state and federal law,'" '7 a possibility made particularly acute by widespread interjurisdic- tional cooperation in law enforcement. Murphy therefore concluded that "the constitutional privilege against self-incrimination protects a state wit- ness against incrimination under federal as well as state law and a federal IMalloy v. Hogan, 378 U.S. 1 (1964) ; Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). 2 378 U.S. at 6. 3378 U.S. 52 (1964). 4 Hereinafter, references to the fifth amendment refer only to the particular clause in question-the privilege against self-incrimination. 5 "Foreign" is used to characterize any jurisdiction, state or federal, outside of the compelling jurisdiction. 6 Ableman v. Booth, 62 U.S. (21 How.) 506, 516 (1858). See generally Grant, Federalism and Self-Incrimination: I & II, 4 U.C.L.A.L. Ray. 549 (1957); 5 U.C.L. A.L. REv. 1 (1958) ; Kroner, Self Incrimination: The External Reach of the Privilege, 60 COLum. L. REv. 816 (1960). The case law based upon the dual sovereignties rule is best exemplified by United States v. Murdock, 284 U.S. 141, 149 (1931) (federal government can compel testimony incriminating under state law) ; Feldman v. United States, 322 U.S. 487, 492 (1944) (federal courts can admit evidence compelled under a state grant of immunity) ; Knapp v. Schweitzer, 357 U.S. 371, 379 (1958) (state can compel testimony incriminating under federal law). 7 378 U.S. at 55 (quoting from the dissenting opinion of Mr. Justice Black in Knapp v. Schweitzer, mupra note 6, at 385). (570) 19661 FIFTH AMENDMENT EXCLUSIONARY RULE witness against incrimination under state as well as federal law." 8 More narrowly, the Court held that a witness before the New York-New Jersey Waterfront Commission was entitled to remain silent because of his jus- tifiable fear, in light of the existing law, that anything he said might be incriminating under federal law.9 In what might be considered a prospec- tive pronouncement of law, the Court further indicated that a state witness may be compelled in the future to testify under an appropriate state immu- nity statute without there being any violation of his privilege against self- incrimination, since the federal government will not be permitted to prosecute that witness if it must rely on his testimony or on any of its fruits.'0 In establishing this rule, the Court declared that a prosecuting jurisdiction must show that its prosecution is based upon sources inde- pendent of the substance of the witness' testimony: "Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." 11 The requirement of such a showing would seem to be the best possible resolution of the interests of the individual, the investigating jurisdiction, and the prosecuting jurisdiction. Starting from the basic premise that the privilege against self-incrimination extends across jurisdictional lines, the Court could have adopted any one of four rules: the witness is entitled to remain silent,'2 the investigating jurisdiction may compel testimony but, if it does, the witness is immune from prosecution in that or any other jurisdiction,'3 the witness may be compelled to testify, but the testimony may not be used by any jurisdiction in a prosecution of that witness, or the witness may be compelled to testify, but his testimony and its fruits may be excluded in any future prosecution. Had the Court chosen the right to remain silent as the vehicle of the privilege, the investigative aspect of state or federal law enforcement might have been irreparably damaged because of the impossibility of compelling testimony, the latter being an important means of securing legislative information. Had the Court selected the compulsion-immunity resolution of the conflict, the prosecut- ing aspect of a jurisdiction's law enforcement would have been severely hindered. Had the Court chosen exclusion of the testimony only, and not of its fruits, the constitutional rights of the individual would have been 8 378 U.S. at 77-78. )Id. at 79. 'oId.at 79 & n.18. 11 Id. at 79 n. 18. 12 The traditional form of the fifth amendment privilege is the right to remain silent: "[N]or shall . [he] be compelled in any criminal case to be a witness against himself. ." U.S. CoNsT. amend. V. 13 This resolution would be similar in effect to the various immunity statutes. For a list of such federal statutes see Note, The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope, 72 YALE L.J. 1568, 1611-12 (appendix A) (1963). 572 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.114:570 sacrificed. On the other hand, the Court's decision to choose the more complete compulsion-exclusion method of effectuating the privilege against self-incrimination safeguards the individual's rights and leaves interested jurisdictions free to investigate crime, while at the same time leaving other potential prosecuting jurisdictions in the same position in which they would have been had the witness been allowed to remain silent. The Murphy resolution, however, does pose a possible threat to effec- tive law enforcement. A jurisdiction which decides to compel testimony [J-1] has made an election between information and prosecution, and has chosen the former. A potential prosecuting jurisdiction [J-2], on the other hand, has had no voice in this determination yet will be affected thereby to the extent that it will be required to forego prosecution when it cannot meet its burden of proving that its prosecution was in no way based upon the testimony compelled in J-1. Some commentators believe that the burden placed upon the prosecution to show that its case is based upon independent sources of information would greatly hinder prosecu- torial efforts.' 4 The major aspect of this problem is the scope of taint: How independent or how attenuated from the original "contaminated" source (the compelled testimony elicited in J-1) must the relevant source be. It is only in the answer that the Court formulates to this question that any actual hindrance to effective law enforcement will become discernible. The doctrine of taint is one element of the rule of exclusion. This rule provides that evidence which has been seized illegally 15 must be excluded from use in any trial of the defendant whose constitutional rights have been violated. The doctrine of taint extends this rule by declaring that other evidence (characterized as "fruit of the poisonous tree") discovered by use of the originally illegally seized evidence must likewise be excluded.'" The exact breadth and scope of taint in the area of self-incrimination are as yet unclear. As it relates to illegal searches and seizures, coerced con- fessions, wiretapping and other forms of primary illegality,' 7 the case law in this area indicates a judicial reluctance to follow to its logical conclusion the labeling of evidence as fruit of a poisonous tree 18-a tendency which 14 See, e.g., Comment, Self-Incriidnation and the States: Restriking the Balalwe, 73 YALE L.J. 1491, 1494 (1964). 15 The rule also applies to coerced' confessions. The Supreme Court, however, has not passed on the question of taint as it applies to this area. 16 The doctrine that poisonous fruit spreads further than the product of the initial illegality has its roots in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all ... " Id. at 392; accord, Nardone v. United States, 308 U.S. 338 (1939). 17 Before Murphy, all the exclusionary rules had been the outgrowth of primary illegalities such as those mentioned in text. The Murphy exclusionary rule, however, operates in situations of court sanctioned "seizures." See 378 U.S. at 79. 18 See, e.g., Smith v. United States, 324 F.2d 879 (D.C. Cir.
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