718
Breyer, J., dissenting
prosecution by a different sovereign seems not quite as unfair as prosecution by the same sovereign—could warrant denying the privilege's application.
The second consideration is practical. The majority, as well as the Government, fear that application of the privilege might unreasonably interfere with the work of law enforcement. See ante, at 697-698; Brief for United States 30-36. But in my view, that fear is overstated. After all, "foreign application" of the privilege would matter only in a case where an individual could not be prosecuted domestically but the threat of foreign prosecution is substantial. Cf. Zicarelli, 406 U. S., at 478-481 (declining to reach privilege claim because witness did not face "real danger" of foreign prosecution). The Second Circuit points out that there have only been a handful of such cases. 119 F. 3d, at 135 (finding only six cases in the 25 years since Zicarelli). That is because relatively few witnesses face deportation or extradition, and a witness who will not " 'be forced to enter a country disposed to prosecute him,' " 119 F. 3d, at 135 (quoting United States v. Gecas, 50 F. 3d 1549, 1560 (CA11 1995), cannot make the showing of "real and substantial" fear that Zicarelli would require.
Moreover, even where a substantial likelihood of foreign prosecution can be shown, the Government would only be deprived of testimony that relates to the foreign crime; the witness would not be entitled to claim a general silence. See Hoffman v. United States, 341 U. S. 479, 486 (1951) (witness may only refuse to answer questions that might "in themselves support a conviction" or "furnish a link in the chain of evidence" for such crime). And nothing would prevent the Government, in a civil proceeding, from arguing that an adverse inference should be drawn from the witnesses' silence on particular questions, see Baxter v. Palmigiano, 425 U. S. 308, 318 (1976), or from supporting that inference with evidence from other, nonprivileged sources. Thus, without any adjustment in practice, it would seem that
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