694
Opinion of the Court
ing degree of international cooperation is coming to characterize the enterprise of criminal prosecution.15 The mission of the OSI as shown in this case exemplifies the international cooperation that is said to undermine the legitimacy of treating separate governmental authorities as separate for purposes of liberty protection in domestic courts. Because the Government now has a significant interest in seeing individuals convicted abroad for their crimes, it is subject to the same incentive to overreach that has required application of the privilege in the domestic context. Balsys says that this argument is nothing more than the reasoning of the Murphy Court when it justified its recognition of a fear of state prosecution by looking to the significance of " 'cooperative federalism,' " the teamwork of state and national officials to fight interstate crime. 378 U. S., at 55-56.
But Balsys invests Murphy's "cooperative federalism" with a significance unsupported by that opinion. We have already pointed out that Murphy's expansion upon Murdock is not supported by Murphy's unsound historical reexamination, but must rest on Murphy's other rationale, under which its holding is a consequence of Malloy. That latter reading is essential to an understanding of "cooperative federalism." For the Murphy majority, "cooperative federalism" was not important standing alone, but simply because it underscored the significance of the Court's holding that after Malloy it would be unjustifiably formalistic for a federal court to ignore fear of state prosecution when ruling on a privilege claim. Thus, the Court described the "whipsaw" effect that the decision in Malloy would have created if fear of state prosecution were not cognizable in a federal proceeding:
"[The] policies and purposes [of the privilege] are defeated when a witness can be whipsawed into incriminating himself under both state and federal law
15 The Court of Appeals cited a considerable number of studies in the growing literature on the subject. 119 F. 3d 122, 130-131 (CA2 1997).
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