The right not to testify against oneself in an American courtroom is absolute. What if, however, the testimony offered was compelled not by a U.S.-based prosecutor, but by a foreign government following its own laws? According to the U.S. Court of Appeals for the Second Circuit decision in United States v. Allen, the rule remains the same: The Fifth Amendment’s prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony. The government’s petition to rehear the case by the full Second Circuit panel was recently denied, which means the decision stands—for now.
Viewed practically, this decision exposes American prosecutors to a difficult trilemma: cease reliance on foreign criminal enforcement altogether; accept the risk that foreign evidence may endanger complex white-collar prosecutions; or seek to calibrate foreign enforcement to American investigatory standards.
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