688
Opinion of the Court
In sum, to the extent that the Murphy majority went beyond its response to Malloy and undercut Murdock's rationale on historical grounds, its reasoning cannot be accepted now. Long before today, indeed, Murphy's history was shown to be fatally flawed.11
11 Murphy, 378 U. S., at 81, n. 1 (Harlan, J., concurring in judgment) ("The English rule is not clear"); United States v. (Under Seal), 794 F. 2d, at 927 ("The Court's scholarship with respect to English law in this regard has been attacked, see Note, 69 Va. L. Rev. at 893-94 . . . . We do not enter the dispute as to whether Murphy represents a correct statement of the English rule at a particular time because we do not think that the Murphy holding depended upon the correctness of the Court's understanding of the state of English law and reliance thereon as the sole basis for decision. Rather, Murphy proceeds as a logical consequence to the holding in Malloy v. Hogan . . ."); Note, Fifth Amendment Privilege Against Self-Incrimination and Fear of Foreign Prosecution, 96 Colum. L. Rev. 1940, 1944-1946, 1949, and nn. 79-81 (1996) ("The uncertainty of English law on [the question whether the privilege can be invoked based on fear of prosecution] casts doubt on the Supreme Court's holding in Murphy, which was based on the assertion that McRae 'represents the settled "English rule" regarding self-incrimination under foreign law.' Indeed, the Murphy Court's reliance on its idea of the 'true' English rule has been criticized by commentators, and its reading of British law was essentially overruled by the British Parliament. Murphy's reliance on mistaken interpretation and application of English law weakens its precedential value" (footnotes omitted)); Note, The Reach of the Fifth Amendment Privilege When Domestically Compelled Testimony May Be Used in a Foreign Country's Court, 69 Va. L. Rev. 875, 893-895 (1983) ("[T]he English rule argument has three fatal flaws. First, the so-called English rule, decided in 1867, never was the English rule despite overstatements by several American commentators and the Murphy Court. British commentators remained uncertain for nearly a century about the extent to which, if at all, their privilege protected against foreign incrimination . . . . Second, the English courts had not decided a case involving incrimination under the criminal laws of independent foreign sovereigns by the time our Constitution was framed. The only English cases involving independent sovereigns were decided more than sixty years later. Thus, even if the fifth amendment embodied the English common law at the time it was framed, the privilege did not incorporate any rule concerning foreign incrimination. Finally, even if the English rule protected against foreign incrimination, the Supreme Court in Zicarelli indicated that it had not
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