704
Breyer, J., dissenting
matter of law, that the privilege applies, across jurisdictions, to the entire class of cases involving federal witnesses who fear state prosecutions and also to the entire class of cases involving state witnesses who fear federal prosecutions. See Murphy, supra, at 77-78. Thus, the Fifth Amendment (or the Fourteenth Amendment) automatically prohibits compelled testimony in any such cross-jurisdictional circumstance.
If I am right about how Murphy should be understood, then that case directs the application of the privilege in this one. That is because the only difference between Murphy and this case is that one cannot say, as a matter of law, that every threat of a foreign prosecution is a reasonable threat. But where there is such a reasonable threat—where the threat is "real and substantial," Zicarelli v. New Jersey Comm'n of Investigation, 406 U. S. 472, 478 (1972)—the privilege, as Murphy understands it, would apply.
A
The majority says that one can read Murphy as embodying a very different rationale, a rationale that turns upon considerations of federalism—the need to consider "state and federal jurisdictions . . . as one" for purposes of applying the privilege. Ante, at 683. It reads Murphy as a case that sees at the heart of the Clause
"the principle that the courts of a government from which a witness may reasonably fear prosecution may not in fairness compel the witness to furnish testimonial evidence that may be used to prove his guilt." Ante, at 683 (emphasis added).
I have underscored the key words "from which." It is these words that tie the Clause to prosecutions by the same sovereign.
But what is the evidence that Murphy put any legal weight at all upon those underscored words? What reason
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