Immunity from Prosecution and the Fifth Amendment: An Analysis of Constitutional Standards

Transactional immunity, on one hand, affords a witness absolute immunity from prosecution for the offense to which the testimony relates, but testimonial immunity, on the other hand, provides protection only from the use of the testimony itself or any evidence derived\u27 directly or indirectly from it--use and fruits immunity. Until the Supreme Court\u27s recent decision in United States v. Kastigar, conflict over the immunity concept was best manifested by the attempts to formulate an appropriate characterization of the relationship between Counselman v. Hitchcock, which represents the transactional immunity approach, and Murphy v. Waterfront Commissioner of New York Harbor, representing a departure from the transactional immunity standard toward a testimonial immunity approach. The Supreme Court in Kastigar attempted to reconcile the apparent disparity between Counselman and Murphy by restricting the more expansive Counselman standard. This Note will explore initially the scope and purpose of the privilege against self-incrimination, attempt to define the concept of immunity in order to discuss the manifold problems surrounding its operation in relation to the fifth amendment, and analyze the interrelationship of the Counselman and Murphy decisions as well as the Supreme Court\u27s recent decision in United States v. Kastigar