8 Cal. W. Int'l L.J. 368 (1978)
Fifth Amendment and International Comity as a Basis for Avoiding the Choice between Conflicting Demands of Two Sovereigns: A Critical Look at United States v. Field

handle is hein.journals/calwi8 and id is 378 raw text is: Note
FIFTH AMENDMENT AND INTERNATIONAL COMITY AS
A BASIS FOR AVOIDING THE CHOICE
BETWEEN CONFLICTING DEMANDS
OF TWO SOVEREIGNS: A
CRITICAL LOOK AT UNITED STATES v. FIELD
United States courts generally have declined to exercise juris-
diction when to do so would subject an individual to foreign crimi-
nal prosecution.' However, a recent Fifth Circuit case, United
States v. Field, may alter this judicial practice. United States v.
Field held that a nonresident alien must comply with a court order
to testify even if such testimony would expose him to criminal pros-
ecution for violating his country's bank secrecy laws.
Field is significant because the facts of the case directly posed a
constitutional question that has not been definitively answered:
whether the fifth amendment3 protects against the foreign use of
compelled testimony. The case also is significant in that it estab-
lishes a precedent which may change the practical scope of interna-
1. Trade Development Bank v. Continental Insurance, 469 F.2d 35 (2d Cir. 1972). In
this case the identities of Swiss bank customers were sought pursuant to a discovery order
even though disclosure would violate the Swiss Bank Secrecy Law. The court as a matter of
comity did not require disclosure. Application of Chase Manhattan Bank, 297 F.2d 611 (2d
Cir. 1962). The court, in this case, modified a grand jury subpoena duces tecum to prohibit
the production of a United States bank subsidiary's records because such production would
risk foreign criminal prosecution. Ings v. Ferguson, 282 F.2d 149 (2d Cir. 1960) (court modi-
fied subpoena duces tecum to avoid production in violation of Canadian nondisclosure law).
First National City Bank of New York v. I.R.S., 271 F.2d 616 (2d Cir. 1959) (dictum), cert.
denied, 361 U.S. 948 (1960). The circuit court refused to modify a subpoena duces tecum
because criminal sanctions were absent, stating that if such were present the production
would not have been ordered. In re Equitable Plan Co., 185 F. Supp. 57 (D.C.N.Y. 1960).
The court refused to enforce a subpoena duces tecum when uncontroverted evidence showed
that disclosure would subject United States bank branch employees in Cuba to criminal
penalties. See also RESTATEMENT OF THE LAW (SECOND) FOREIGN RELATIONS LAW OF THE
UNITED STATES § 40, comment c (1965).
2. 352 F.2d 404 (5th Cir. 1976), cerl. denied, 429 U.S. 1100 (1977).
3. U.S. CONST. amend. V. [hereinafter cited as fifth amendment], which states in perti-
nent part that [n]o person... shall be compelled in any criminal case to be a witness
against himself.

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