TWO SOVEREIGNTIES RULE

This rule, which the Supreme Court repudiated in Murphy v. Waterfront Commission (1964), was a limitation on the right against self-incrimination. Based on the federal principle that one sovereignty has no interest in the law enforcement activities of another, the rule was that a person could not refuse to testify on the grounds that his disclosure would subject him to prosecution by another sovereignty or jurisdiction. Thus he could be convicted of a federal crime on the basis of testimony compelled in a state proceeding or of a state crime on the basis of testimony compelled in a federal proceeding. In matters involving national supremacy, Congress can grant immunity against state prosecutions, but a state cannot immunize against a federal prosecution and one state cannot immunize against prosecution in another.

The rule entered American constitutional law in 1906 in Hale v. Henkel as a result of the Court's factual mistakes. In that case the appellant, who had received a grant of immunity against federal prosecution, sought reversal of his conviction for contempt by a federal court for refusing to answer questions that exposed him to state prosecution. The Court needlessly declared that English common law had settled the question by a rule that "the only danger to be considered is one arising within the same jurisdiction and under that same sovereignty." The Court cited two English cases, one not in point and the other soon discredited by a decision unknown to the Court. In United States v. Murdock (1933), a unanimous Court "definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law," a proposition resting on Hale and the two English precedents. By 1944 the Court made the two sovereignties rule reciprocal, so that a suspect could be whipsawed into incriminating himself in one jurisdiction by receiving a grant of immunity from another. State and federal authorities sometimes assisted each other, one compelling disclosure, the other prosecuting. So matters stood until the Murphy case.

Although granted immunity by New York and New Jersey, Murphy remained silent because his answers might incriminate him under federal law. He won a reversal of his conviction when the Supreme Court, in an opinion by Justice arthur j. goldberg, exposed the erroneous basis of the precedents and concluded that the two sovereignties rule had no support in history or in the policies underlying the Fifth Amendment right. On the same day, in malloy v. hogan (1964), the Court extended that right to the states. Given that extension and a broad view of the right, the Court held that a state witness is protected against incrimination under both federal and state law and a federal witness is similarly protected. Justices byron r. white and potter stewart concurred separately. Murphy also stands for the proposition that use immunity rather than transactional immunity satisfies the demand of the Fifth Amendment at least in a two sovereignties case.

A two sovereignties rule still operates with respect to double jeopardy : a person may be prosecuted for both state and federal crimes committed by the same act.

Leonard W. Levy
(1986)