Cite as: 524 U. S. 666 (1998)
Breyer, J., dissenting
as the basic principles underlying the privilege, convince me that the Fifth Amendment's privilege against self-incrimination should encompass not only feared domestic prosecutions, but also feared foreign prosecutions where the danger of an actual foreign prosecution is substantial.
I
I begin with a point that focuses upon precedent setting forth the current understanding of the scope of the word "any," and that reveals the basic difference between the majority's view of the privilege and the view this Court has previously taken and should continue to take. The majority focuses upon one case, Murphy v. Waterfront Comm'n of N. Y. Harbor, supra, which itself discusses much historically relevant precedent. And the majority's focus upon that one case is appropriate.
Murphy holds that "the constitutional privilege against self-incrimination protects . . . a federal witness against incrimination under state . . . law." Id., at 77-78. As I read Murphy, the Court thought this conclusion flowed naturally from its basic understanding of the scope of the Fifth Amendment privilege. On that understanding, the privilege prohibits federal courts (and state courts through the Fourteenth Amendment) from compelling a witness to furnish testimonial evidence that may be used to prove his guilt if that witness may reasonably fear criminal prosecution. See id., at 60-63 (discussing the English cases, King of Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116 (Ch. 1851), and United States of America v. McRae, 3 L. R. Ch. 79 (1867), as ones that, if rightly understood, embody that proposition of law).
The privilege, understood in this way, requires the abolition of any "same sovereign" rule. It is often reasonable for a federal witness to fear state prosecution, and vice versa. Indeed, where testimony may incriminate and immunity has not been granted, it is so reasonable that one can say, as a
703
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