Self-Incrimination's Covert Federalism

U of Michigan Public Law Working Paper No. 70

Berkeley Journal of Criminal Law, Vol. 11, pp. 1-42, 2006-07

43 Pages Posted: 20 Nov 2006

See all articles by Peter K. Westen

Peter K. Westen

University of Michigan Law School


The Privilege against Self-Incrimination is widely lauded by courts as an "ancient," "venerable," "noble" principle of justice, a "precious" privilege of free men, and a "mainstay of the American adversary system" - from which it is natural to assume that the privilege enjoys special, perhaps even absolute protection.

It is also natural to assume that once the U.S. Supreme Court interprets the privilege to prevent the state from using a witness's testimony against him, Congress may not disregard the interpretation by authorizing the state to use such testimony against him. Indeed, the Court seemed to support that view in Dickerson v. United States (2000), holding that Congress may not lawfully replace Court-imposed Miranda warnings with a provision that authorizes the federal government to use any statement against an arrestee that is "voluntary."

I shall argue that the foregoing assumptions are both mistaken and that both mistakes derive from a failure to appreciate the significance of Murphy v. Waterfront Commission 1964). The decision in Murphy, which the Court recently reaffirmed in United States v. Balsys (1998), demonstrates that the Court is willing to resolve Fifth Amendment cases by weighing individual interests against governmental interests. Murphy also suggests that the federal courts have authority to effectuate the testimonial interests that underlie the privilege by adopting rules of federal common law or constitutional common law that Congress, in turn, has constitutional authority to modify.

Commentators fail to appreciate Murphy's significance because they focus on only one of the two things that Murphy does. They focus on its interpretation of the privilege to protect witnesses before one government within the United States (whether state or federal) from being compelled to give testimony that may incriminate them in the courts of other governments within the United States (whether state or federal). The true significance of Murphy, however, lies in a covert and companion ruling in Murphy that serves as a predicate for Murphy's interpretation of the privilege - an interpretation that, in the end, is relatively prosaic, given Murphy's companion ruling.

Murphy's companion ruling has passed largely unnoticed, but it enabled the Murphy Court to interpret the privilege in the way it did. The companion ruling is a federal or constitutional common law rule of use immunity: it is a rule to the effect that each and every government within the United States has authority to grant any witness a certain measure of immunity in the courts of every other government within the United States, simply by ordering the witness to testify over the witness's claim that testifying will lead to self-incrimination in the courts of those other governments.

Murphy's Exclusionary Rule reveals something significant about the scope of the privilege against self-incrimination with respect to judicial witnesses. It reveals that the Fifth and Fourteenth Amendment privilege is only as strong as the government's ability to elicit testimony under grants of use immunity, and that where governments within the United States lack authority to grant witnesses immunity, the privilege that witnesses ordinarily possess not to be compelled to incriminate themselves must yield to the government's interest in obtaining their testimony.

Suggested Citation

Westen, Peter K., Self-Incrimination's Covert Federalism. U of Michigan Public Law Working Paper No. 70, Berkeley Journal of Criminal Law, Vol. 11, pp. 1-42, 2006-07, Available at SSRN:

Peter K. Westen (Contact Author)

University of Michigan Law School ( email )

3178 South Hall
701 South State Street
Ann Arbor, MI 48109-3091
United States
505 577-2855 (Phone)
505 992-6885 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics