Ytdyklly

To quote this article about Chelsea Manning's jailing:

She said prosecutors have granted her immunity for her testimony, which eliminates her ability to invoke her Fifth Amendment right against self-incrimination.

I don't understand how granting immunity for a testimony can eliminate the right to remain silent?

linked: https://politics.stackexchange.com/a/23980/6057

The actual wording of the Fifth Admendment is

No person ... shall be compelled in any criminal case to be a witness against himself, ...

Once a person has been granted immunity, that person's testimony cannot be used against him or her, and so compelling testimony does not violate this right.

A person asserting this right ("Pleading the Fifth") must have a reasonable belief that the testimony might actually be used in a criminal proceeding against him or her.

In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) at page 68 it is pointed out that

the danger of prosecution "must be real and appreciable . . . , not a danger of an imaginary and unsubstantial character. . . ."

(quoting The Queen v. Boyes, 1 B. & S. 311, a English case decided by the Queen's Bench in 1861)

In The Queen v. Boyes a witness had declined to answer a question on the ground that it might tend to incriminate him, whereupon the

"Solicitor General then produced a pardon of the witness."

The witness nevertheless refused to answer the question on the ground that he could still be impeached by the Parliament. The court held

"that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things -- not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency so improbable that no reasonable man would suffer it to influence his conduct. . . ."

(from Footnote 7 of Murphy)

Murphy v. Waterfront Comm'n, reviews the history of grants of immunity is some detail, and is worth reading for those interested in the subject. In that case the rule against self-incrimination was made fully applicable to the states, and State and Federal governments were each required to honor grants of immunity by the other.

Go to the actual text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

On a strictly literal reading, this is a very narrow right, which can only be violated if:

1. There is a criminal trial.


2. A witness is called during the trial.


3. The witness is the defendant.


4. The testimony is compelled.

However, the actual law as interpreted by the Supreme Court is closer to the following:

1. There is a possibility of criminal prosecution.
   


2. Someone gives testimony which could be used to prosecute that crime.


3. The witness could potentially be a defendant.
   


4. The testimony is compelled. If the witness was in custody, this requirement is assumed and must be rebutted by an explicit waiver of rights.
   

Transactional (sometimes called "blanket" or "total") immunity eliminates #3 (by making the witness not liable for the crime at all), and "use and derivative use" immunity eliminates #2 (by making the statements inadmissible at trial). In Kastigar v. United States, the Supreme Court ruled that use and derivative use immunity is sufficient to avoid offending the Fifth Amendment in federal cases. State cases are complicated by the additional rights afforded by the constitutions of each state, and the requirements therefore vary by state.