666
OCTOBER TERM, 1997
Syllabus
certiorari to the united states court of appeals for the second circuit
No. 97-873. Argued April 20, 1998—Decided June 25, 1998
When the Office of Special Investigations of the Department of Justice's
Criminal Division (OSI) subpoenaed respondent Balsys, a resident alien, to testify about his wartime activities between 1940 and 1944 and his immigration to the United States, he claimed the Fifth Amendment privilege against self-incrimination, based on his fear of prosecution by a foreign nation. The Federal District Court granted OSI's petition to enforce the subpoena, but the Second Circuit vacated the order, holding that a witness with a real and substantial fear of prosecution by a foreign country may assert the privilege to avoid giving testimony in a domestic proceeding, even if the witness has no valid fear of a criminal prosecution in this country.
Held: Concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause. Pp. 671-700.
(a) As a resident alien, Balsys is a "person" who, under that Clause, cannot "be compelled in any criminal case to be a witness against himself." See Kwong Hai Chew v. Colding, 344 U. S. 590, 596. However, the question here is whether a criminal prosecution by a foreign government not subject to this country's constitutional guarantees presents a "criminal case" for purposes of the privilege. Pp. 671-672.
(b) Balsys initially relies on the textual contrast between the Sixth Amendment, which clearly applies only to domestic criminal proceedings, and the Fifth, with its broader reference to "any criminal case," to argue that "any criminal case" means exactly that, regardless of the prosecuting authority. But the argument overlooks the cardinal rule to construe provisions in context. See King v. St. Vincent's Hospital, 502 U. S. 215, 221. Because none of the other provisions of the Fifth Amendment is implicated except by action of the government that it binds, it would have been strange to choose such associates for a Clause meant to take a broader view. Further, a more modest understanding, that "any criminal case" distinguishes the Fifth Amendment's Self-Incrimination Clause from its Clause limiting grand jury indictments to "capital, or otherwise infamous crime[s]," provides an explanation for the text of the privilege. Indeed, there is no known clear common-law precedent or practice, contemporaneous with the framing, for looking to
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