Volume 85, Number 4

October 2010

“Cooperative Prosecution” and the Fifth Amendment Privilege Against Self-Incrimination

Gregory O. Tuttle

In United States v. Balsys, the Supreme Court held definitively that the Fifth Amendment privilege against self-incrimination does not apply to fear of solely foreign prosecution. The Court also recognized in dicta that the privilege might apply under a narrow set of circumstances when a witness can prove “cooperative prosecution” between United States law enforcement officials and a foreign sovereign. Subsequent witnesses claiming this “exception” have, however, been unsuccessful. I argue, first, that the “cooperative prosecution exception” is constitutionally mandated by the traditional justifications for the Fifth Amendment privilege and should be elevated above the status of mere dicta. Second, I argue that the Supreme Court dicta as well as subsequent lower court interpretation of this language impose such a high burden on witnesses that the exception (to the extent it is recognized) is essentially nonexistent, even for meritorious claims. Borrowing from recent case law, I propose a prophylactic solution to vindicate the privilege in a manner consistent with Supreme Court precedent.