The Consequences of Compelled Self-Incrimination in Terrorism Investigations: A Comparison of American Grand Juries and Canadian Investigative Hearings

Abstract

This paper compares American grand juries and Canadian investigative hearings as devices to compel persons to provide information for terrorism investigations in light of comparable protections against self-incrimination in both countries. The main protections of the constitutional right against self-incrimination may be too parochial in an era of global terrorism and the assertion of universal jurisdiction to prosecute terrorism. The main distorting effects are 1) attempts to delay the compelled testimony of a person detained as a material witness and to use compelled self-incrimination to engage in preventive detention, 2) attempts to use the fruits of compelled incrimination in jurisdictions that do not have to respect use and derivative use immunity, and 3) the use of contempt or perjury charges arising from the attempt to compel testimony rather than trials on the merits of the terrorism investigation. The distorting effects may be the price that a society has to pay for respecting constitutional protections against self-incrimination. The paper examines how Canadian investigative hearings offer more protections for compelled persons than American grand juries particularly in light of the Supreme Court of Canada’s extension of use and derivative use immunity for compelled testimony to extradition and deportation proceedings.

Keywords: Self-Incrimination, Grand Jury, Terrorism Investigation, Investigative Hearing, Constitutional Protection