778
Souter, J., concurring in judgment
variety of Fifth Amendment holdings: barring compulsion to give testimonial evidence in a civil proceeding, see McCarthy v. Arndstein, 266 U. S. 34, 40 (1924); requiring a grant of immunity in advance of any testimonial proffer, see Kastigar v. United States, 406 U. S. 441, 446-447 (1972); precluding threats or impositions of penalties that would undermine the right to immunity, see, e. g., Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U. S. 280, 284-285 (1968); Lefkowitz v. Turley, 414 U. S. 70, 77-79 (1973); Lefkowitz v. Cunningham, 431 U. S. 801, 804-806 (1977); McKune v. Lile, 536 U. S. 24, 35 (2002) (plurality opinion); and conditioning admissibility on warnings and waivers to promote intelligent choices and to simplify subsequent inquiry into voluntariness, see Miranda, supra. All of this law is outside the Fifth Amendment's core, with each case expressing a judgment that the core guarantee, or the judicial capacity to protect it, would be placed at some risk in the absence of such complementary protection.
I do not, however, believe that Martinez can make the "powerful showing," subject to a realistic assessment of costs and risks, necessary to expand protection of the privilege against compelled self-incrimination to the point of the civil liability he asks us to recognize here. See id., at 515, 517 (Harlan, J., dissenting). The most obvious drawback inherent in Martinez's purely Fifth Amendment claim to damages is its risk of global application in every instance of interrogation producing a statement inadmissible under Fifth and Fourteenth Amendment principles, or violating one of the complementary rules we have accepted in aid of the privilege against evidentiary use. If obtaining Martinez's statement is to be treated as a stand-alone violation of the privilege subject to compensation, why should the same not be true whenever the police obtain any involuntary self-incriminating statement, or whenever the government so much as threatens a penalty in derogation of the right to
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