## Facts

- Aloyzas Balsys, a Lithuanian national and U.S. resident alien, entered the United States in 1961 on an immigrant visa.
- In his visa application, Balsys represented that he served in the Lithuanian army (1934–1940) and lived “in hiding” in Lithuania (1940–1944), and he acknowledged potential criminal prosecution and deportation for false statements or concealment.
- The Department of Justice’s Office of Special Investigations (OSI) investigated whether Balsys participated in Nazi persecution during World War II and whether he had lied on his immigration application, which could support deportation and related consequences.
- OSI issued an administrative subpoena compelling Balsys to testify about his wartime activities (1940–1944) and his immigration to the United States.
- At the deposition, Balsys provided identifying information but refused to answer further questions, invoking the Fifth Amendment based on fear of prosecution by foreign governments (including Lithuania, Israel, and Germany), not fear of prosecution in the United States.
- The district court enforced the subpoena; the Second Circuit vacated, holding the privilege could apply to a real and substantial fear of foreign prosecution.
- The Supreme Court granted certiorari to decide whether foreign-prosecution risk alone can trigger the privilege in a U.S. proceeding.

## Issues

1. Whether the Fifth Amendment Self-Incrimination Clause permits a witness in a U.S. proceeding to refuse to testify solely because truthful answers may subject the witness to criminal prosecution by a foreign nation.
2. Whether the privilege’s scope changes where the risk is foreign prosecution by authorities not bound by the U.S. Constitution, absent any reasonable fear of U.S. prosecution.
3. Whether an exception may exist where foreign prosecution is effectively used as an instrument of U.S. law enforcement through cooperative prosecution.

## Decision

- The Supreme Court reversed the Second Circuit and remanded.
- The Court held that fear of foreign prosecution, standing alone, is beyond the scope of the Fifth Amendment Self-Incrimination Clause.
- A witness therefore may not refuse to testify in a U.S. proceeding solely because answers could incriminate the witness under foreign law.
- The Court noted, without resolving, the possibility of different treatment where U.S. and foreign authorities engage in cooperative prosecution so extensive that the foreign case functions as a proxy for U.S. action; no such showing was made here.
- Justice Stevens concurred (while joining the majority).
- Justices Ginsburg and Breyer dissented (Breyer joined by Ginsburg), favoring protection when a real and substantial risk of foreign prosecution exists.

## Legal Principles

- The Self-Incrimination Clause is primarily a constitutional restraint on the government(s) bound by the Constitution; its protection does not generally extend to risks of prosecution by foreign sovereigns not subject to the Clause.
- “Any criminal case” in the Fifth Amendment does not, by itself, require treating potential foreign prosecutions as within the privilege’s coverage in a domestic compulsion proceeding.
- Historical practice and common-law materials at the framing did not clearly recognize a privilege claim based on threatened foreign prosecution.
- Prior cases addressing multiple domestic sovereigns do not compel extension of the privilege to foreign prosecutions by governments outside constitutional constraints.
- A potential exception may arise if foreign prosecution is so intertwined with U.S. compulsion that it operates as an instrumentality of U.S. enforcement; the Court did not decide the contours of that scenario and found it unsupported on the record.

## Conclusion

The Court held that the Fifth Amendment privilege against self-incrimination cannot be invoked in a U.S. proceeding solely to avoid testimony that may lead to foreign criminal prosecution, while leaving open the possibility that extreme U.S.–foreign cooperative prosecution could present a different constitutional question.


United States v. Balsys, 524 U.S. 666 (1998)