Cite as: 524 U. S. 666 (1998)
Syllabus
the possibility of foreign prosecution as a premise for claiming the privilege. Pp. 672-674.
(c) In the precursors of this case, the Court concluded that prosecution in a state jurisdiction not bound by the Self-Incrimination Clause is beyond the purview of the privilege. United States v. Murdock, 284 U. S. 141. United States v. Saline Bank of Va., 1 Pet. 100, and Ball-mann v. Fagin, 200 U. S. 186, distinguished. The Court's precedent turned away from this proposition once, in Malloy v. Hogan, 378 U. S. 1, 3, where it applied the Fourteenth Amendment due process incorporation to the Self-Incrimination Clause, so as to bind the States as well as the National Government by its terms. It immediately said, in Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U. S. 52, 57, that Malloy necessitated a reconsideration of Murdock's rule. After Malloy, the Fifth Amendment limitation was no longer framed for one jurisdiction alone, each jurisdiction having instead become subject to the same privilege claim flowing from the same source. Since fear of prosecution in the one jurisdiction now implicated the very privilege binding upon the other, the Murphy opinion sensibly recognized that if a witness could not assert the privilege in such circumstances, the witness could be "whipsawed" into incriminating himself under both state and federal law, even though the privilege was applicable to each. Such whipsawing is possible because the privilege against self-incrimination can be exchanged by the government for an immunity to prosecutorial use of any compelled inculpatory testimony. Kastigar v. United States, 406 U. S. 441, 448-449. Such an exchange by the government is permissible only when it provides immunity as broad as the privilege. After Malloy had held the privilege binding on the state jurisdictions as well as the National Government, it would have been intolerable to allow a prosecutor in one or the other jurisdiction to eliminate the privilege by offering immunity less complete than the privilege's dual jurisdictional reach. To the extent that the Murphy Court undercut Murdock's rationale on historical grounds, its reasoning that English cases supported a more expansive reading of the Clause is flawed and cannot be accepted now. Pp. 674-690.
(d) Murphy discusses a catalog of "Policies of the Privilege," which could suggest a concern broad enough to encompass foreign prosecutions. However, the adoption of such a revised theory would rest on Murphy's treatment of English cases, which has been rejected as an indication of the Clause's meaning. Moreover, although Murphy catalogs aspirations furthered by the Clause, its discussion does not weigh the host of competing policy concerns that would be raised in a legitimate reconsideration of the Clause's scope. Contrary to Balsys's
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