Counselman v. Hitchcock, 142 U.S. 547 (1892)

This case concerns the breadth of the protection against self-incrimination under the Fifth Amendment. The defendant, Counselman, invoked his Fifth Amendment privileges in refusing to answer specific questions from a federal grand jury. Because of the existence of a federal statue granting immunity from prosecution on the basis of evidence the witness had provided during a criminal proceeding, Counselman was charged with contempt. He filed a petition for a writ of habeas corpus, arguing that he could legitimately invoke the Fifth Amendment, because its protection was broader than that offered by the statute.

The case went on appeal to the U.S. Supreme Court, where it was heard in December 1891 and decided in January 1892, with Justice Samuel Blatchford writing for a unanimous Court. The Court agreed with Counselman’s contention, saying that the protection provided by the federal law was limited by the fact that, while the evidence obtained through his testimony could not be used against him in a federal proceeding, it could be used as a basis for obtaining information that might be used in another case against him. The Court thus acknowledged the limited protection offered by the federal statute. Congress subsequently revised the law, prohibiting the prosecution of a witness granted immunity for his involvement in the matter about which he testified.

In a period when relatively little attention was being paid to the scope of civil liberties protection offered by the federal Bill of Rights, the ruling in this case was significant because the Court, given the opportunity, was willing to acknowledge the broad scope of the guarantees against self-incrimination offered by the Fifth Amendment.

REBECCA S. SHOEMAKER

References and Further Reading

• Constitutional Rights at the Junction: The Emergence of the Privilege against Self-Incrimination and the Interstate Commerce Act, Virginia Law Review, 81 (1995): 7:1989–2042.
• Levy, Leonard. Origins of the Fifth Amendment; the Right against Self-incrimination New York: Oxford University Press, 1968.

See also Coerced Confessions/Police Interrogations; Self-incrimination (v): Historical Background