Today, the United States is routinely involved in cross-border criminal investigations. Unlike just a few years ago, however, foreign nations have begun their own investigations as well, in many instances probing the same (mis)conduct as the United States. While a welcomed change to some, intersections between U.S. and foreign investigations have triggered novel constitutional issues for American actors. For the first time, this Note will discuss a question that arises from these intersections: is testimony independently compelled by a foreign sovereign, under threat of sanction, “compelled” under the Constitution’s Fifth Amendment?
This Note argues that it is. To arrive at this conclusion, this Note first engages with the same-sovereign rule, a rule endorsed by the Supreme Court’s recent venture into the extraterritoriality of the Fifth Amendment. Finding that the rule creates an interpretive tension with other terms in the Self-Incrimination Clause (the “Clause”), this Note suggests an alternative rule, one that achieves harmony among terms within the Clause. Following this interpretation, this Note argues that foreign compulsion triggers the Fifth Amendment, even when the United States is in no way involved in the compulsion.
After finding that foreign compulsion is “compelled,” this Note moves on to decide how American courts should treat that testimony. While testimony compelled by U.S. authorities is owed use and derivative use immunity, this Note, upon noting the lack of absolute commitment to any one immunity standard in the Court’s precedents, decides if a lesser immunity standard, such as use only immunity, is more fitting. Acknowledging the weighty concerns to the contrary, this Note concludes that foreign-compelled testimony is owed use and derivative use immunity, but with the caveat that the government may make nonevidentiary uses of foreign-compelled testimony.