dissenting.
Petitioner refused to answer questions directed to him by a New York grand jury on the ground that his answers might tend to incriminate him under both state and federal law. He was then granted immunity from prosecution under state law and ordered to answer. When he *383persisted in his refusal he was found guilty of contempt and sentenced to jail. In reviewing his conviction the Appellate Division of the New York Supreme Court rejected the contention that it violated both State and Federal Constitutions to punish him for declining to give testimony which might have incriminated him under federal law. 2 App. Div. 2d 579, 157 N. Y. S. 2d 158.
Article I, § 6 of the New York Constitution, like the Fifth Amendment, provides that “No person . . . shall be compelled in any criminal case to be a witness against himself.” The Appellate Division ruled that .this state provision had not been infringed, pointing out (1) that petitioner had been granted immunity from state prosecution and (2) his answers could not be used to convict him of a federal crime since the record showed that the federal district attorney had “cooperated” with state officers in the grand jury investigation. The New York Court of Appeals affirmed without opinion. 2 N. Y. 2d 913, 141 N. E. 2d 825.
In affirming, this Court evidently takes the position, contrary to the Appellate Division, that whatever cooperation between federal and state officials is disclosed by this record it is not enough to bhr use of petitioner’s testimony in a federal prosecution. In the light of this, it seems to me that the proper course would be to vacate the judgment of the New York Court of Appeals and remand so that the courts of that State might consider petitioner’s claim of privilege under the New York Constitution free from the erroneous assumption that his testimony could not be used to convict him of a federal crime. See Standard Oil Co. of California v. Johnson, 316 U. S. 481. Cf. Patterson v. Alabama, 294 U. S. 600, 607; 28 U. S. C. § 2106. Otherwise petitioner will go to jail when there is at least a chance that the New York courts would not have upheld his conviction had they *384known, as they now do, that his state-compelled testimony could be used against him in the federal courts.1
I think it is also appropriate to say a few words here about Feldman v. United States, 322 U. S. 487, which was referred to by the Appellate Division. In that case a minority of this Court held, 4-3, that information extracted from a person by state authorities under threat of punishment could be used to convict him of a federal crime.2 The passage of time has only strengthened my conviction that this result is thoroughly contrary to the guarantee of the Fifth Amendment that no person shall be compelled to be a witness against himself, at least in a federal prosecution. The untenability of the premises upon which the Court relied in Feldman has been clearly revealed in a series of penetrating law review articles by Professor J. A. C. Grant. Immunity from Compulsory Self-Incrimination in a Federal System of Government, 9 Temple L. Q. 57, 194; Federalism and Self-Incrimination, 4 U. C. L. A. Law Rev. 549, 5 id., 1. Feldman places a witness who is called before a state agency and ordered to testify in a desperate position; he must either remain silent and risk state imprisonment for contempt or con*385fess himself into a federal penitentiary. See Marcello v. United States, 196 F. 2d 437. Indeed things have now reached the point, as the result of United States v. Murdock, 284 U. S. 141, Feldman, and the present case, where a person can be whipsawed into incriminating himself under both state and federal law even though there is a privilege against self-incrimination in the Constitution of each. Cf. Irvine v. California, 347 U. S. 128; United States v. Kahriger, 345 U. S. 22. I cannot agree that we must accept this intolerable state of affairs as a necessary part of our federal system of government.
In Michigan, at least, the state constitution has been interpreted as preventing state officers from compelling disclosure of facts which might tend to incriminate the witness under federal law, even though he has been granted full immunity from state prosecution. People v. DenUyl, 318 Mich. 645, 29 N. W. 2d 284. Cf. State ex rel. Doran v. Doran, 215 La. 151, 39 So. 2d 894.
Contrast Bram v. United States, 168 U. S. 532, where this Court ruled that an involuntary confession could not be used in a federal prosecution even though it was procured by officers of a foreign nation outside the United States. And see Ashcraft v. Tennessee, 322 U. S. 143, at 155, where we declared that "The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession.” It seems to me that there was at least as much coercion in Feldman as in either of these cases.