706
Breyer, J., dissenting
witness against incrimination under state . . . law." Murphy, supra, at 78. Second, it says explicitly that it "reject[s]" the Murdock rule, not because of considerations of federalism arising out of Malloy, but because it is "unsup-ported by history or policy" and represents a "deviation" from a "correct . . . construction" of the privilege in light of its "history, policies and purposes." Murphy, supra, at 77. Third, about half of the opinion consists of an effort to demonstrate that the privilege, as understood by the English courts and by American courts prior to Murdock, protected individuals from compelled testimony in the face of a realistic threat of prosecution by any sovereign, not simply by the same sovereign that compelled the testimony. See Murphy, 378 U. S., at 58-70. Fourth, the rest of the Court's analysis consists of a discussion of the purposes of the privilege, which, in the Court's view, lead to a similar conclusion. See id., at 55-56. Fifth, the Court explicitly rejects the analysis of commentators who argued for a "same sovereign" rule on the ground that their understanding of the privilege's purposes was incomplete. See id., at 56-57, n. 5 (rejecting 8 J. Wigmore, Evidence § 2258, p. 345 (McNaughton rev. 1961)). Sixth, the Court nowhere describes its rationale in "silver platter" or similar terms that could lead one to conclude that its rule is prophylactic, enforcement based, or rests upon any rationale other than that the privilege is not limited to protection against prosecution by the same jurisdiction that compels the testimony. Cf. 378 U. S., at 80-81 (Harlan, J., concurring in judgment).
Consequently, I believe one must read Murphy as standing for the proposition that the privilege includes protection against being compelled to testify by the Federal Government where that testimony might be used in a criminal prosecution conducted by another sovereign. And the question the Court must consequently face is whether we should reject the rationale of that case when we answer the ques-
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