720
Breyer, J., dissenting
day's immunity means more potentially imprisonable citizens remain at liberty. This is a price that the Amendment extracts where government wishes to compel incriminating testimony; and it is difficult to see why that price should not be paid where there is a real threat of prosecution, but it is foreign.
* * *
In sum, I see no reason why the Court should resurrect the pale shadow of Murdock's "same sovereign" rule, a rule that Murphy demonstrated was without strong historical foundation and that would serve no more valid a purpose in today's world than it did during Murphy's time. Murphy supports recognizing the privilege where there is a real and substantial threat of prosecution by a foreign government. Balsys is among the few to have satisfied this threshold. The basic values that this Court has said underlie the Fifth Amendment's protections are each diminished if the privilege may not be claimed here. And surmountable practical concerns should not stand in the way of constitutional principle.
For these and related reasons elaborated by the Second Circuit, I respectfully dissent.
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