## Facts

- Charles Counselman, a Chicago grain dealer, was subpoenaed to testify before a federal grand jury investigating possible Interstate Commerce Act violations by railroad companies.
- Counselman answered background questions about his business but refused to answer questions about whether he had received freight rates below published tariffs.
- He asserted that answering could tend to incriminate him under the Fifth Amendment privilege against self-incrimination.
- The government relied on Revised Statutes § 860, which barred the use of compelled testimony against the witness in federal criminal proceedings.
- The federal district court held Counselman in contempt for refusing to answer and ordered him jailed by U.S. Marshal Frank Hitchcock.
- Counselman sought habeas corpus relief, arguing his confinement was unlawful because the Fifth Amendment protected his refusal; the lower court denied relief.

## Issues

1. Whether the Fifth Amendment privilege against self-incrimination applies to a witness compelled to testify before a federal grand jury investigating possible criminal violations.
2. Whether Revised Statutes § 860’s prohibition on using compelled testimony against the witness is sufficient to displace the Fifth Amendment privilege and require answers to potentially incriminating questions.

## Decision

- The Supreme Court reversed and remanded with directions to discharge Counselman from custody.
- The Court held that the Fifth Amendment privilege applies in grand jury investigations into suspected criminal conduct.
- The Court held that § 860 did not provide immunity coextensive with the Fifth Amendment and therefore could not compel Counselman to answer.
- Because Counselman validly invoked the privilege, the contempt order and resulting confinement were unlawful.

## Legal Principles

- “In any criminal case” includes grand jury proceedings investigating possible criminal violations, not only trials where the witness is already a defendant.
- The privilege against self-incrimination protects against compelled answers that may tend to incriminate, including disclosures that could supply a link in the chain of evidence by identifying sources, means, or leads to proof of an offense.
- A statutory immunity provision can substitute for the privilege only if it affords protection as broad in scope and effect as the constitutional privilege.
- Immunity that merely bars direct use of the witness’s testimony is inadequate if the witness remains subject to prosecution based on evidence derived from the compelled answers.
- To compel testimony over a valid Fifth Amendment claim, the immunity must provide complete protection from prosecution for the offense to which the compelled testimony relates (transactional immunity), as a full substitute for the privilege.

## Conclusion

The Court held that a grand jury witness may refuse to answer questions that may incriminate him and that a statute barring only the use of compelled testimony is not enough to overcome the Fifth Amendment; only immunity coextensive with the privilege can justify compulsion.


Counselman v. Hitchcock, 142 U.S. 547 (1892)