dissenting.
A witness in a judicial proceeding has a duty to answer proper questions. The witness cannot, however, be compelled to incriminate himself. If a witness believes a truthful response to a question could be used against him in a subsequent criminal proceeding, or might lead to the discovery of incriminating evidence, he may assert his constitutional right to remain silent. When such an assertion is made, a judge must evaluate the asserted risk. If it clearly appears that the answer could not be used against the witness in a subsequent criminal proceeding and could not provide a prosecutor with any information that he does not already have, the witness must speak. This case concerns a witness’ refusal to give answers that could not incriminate him.
The Court today holds that the existence of a valid Fifth Amendment privilege does not depend on whether a truthful answer would be incriminating. The Court does not dispute the fact that neither the respondent’s answers during the deposition in this case, nor any information discovered on the basis of those answers, could be used against him in a subsequent criminal proceeding. Ante, at 257, n. 13. Nevertheless, the Court holds that the Fifth Amendment empowers the respondent to refuse to testify. The opinion of the Court stresses two interests: “the Government’s need for admissible evidence” in a future effort to prosecute the respondent, and “the individual’s interest in avoiding self-incrimination.” Ante, at 256. It holds that potential threats to those interests create a Fifth Amendment privilege in this case.
I am frankly puzzled by this analysis. The Government’s supposed desire to introduce evidence in a future proceeding should be irrelevant if the Government has already forsworn the right to introduce that evidence by a prior grant of immunity. And, as far as the deponent’s interest in avoiding self-incrimination is concerned, “he should be indifferent between the protection afforded by silence and that afforded by immu*283nity,” ante, at 257. Thus, whether analyzed from the point of view of the prosecutor or the witness, the same question must be answered: whether the statutory immunity that has already attached to respondent’s grand jury testimony precludes the Government, or any other prosecutor, from using the respondent’s deposition answers against him in any criminal case. That question requires an analysis not of whether the deposition answers are “immunized ‘testimony,’” ante, at 250, but rather of whether the answers would be “directly or indirectly derived from [his grand jury] testimony” within the meaning of the use-immunity statute. Because I think it clear that they would be so derived, I respectfully dissent.
HH
Respondent has been a witness in two separate proceedings. In January 1978, he was subpoenaed to testify before a federal grand jury investigating a violation of the Sherman Act. Because he was a participant in the price-fixing arrangements under review, he asserted his constitutional privilege against being compelled to be a witness against himself.1 The prosecutor then invoked his authority under the Organized Crime Control Act of 1970,2 and a federal judge ordered the respondent to testify in exchange for a grant of immunity.
In May 1981, respondent was subpoenaed to appear in a second proceeding.3 At that deposition proceeding, respond*284ent was asked the same questions that he had been asked before the grand jury. Everyone agrees that the questions were derived from the transcript of his grand jury testimony, and no one disputes the fact that truthful answers to those questions would merely have confirmed information that was already recorded in the grand jury transcript.4 It is therefore logical to inquire, as the court below did, whether ratification of the prior immunized testimony would subject the respondent to a new risk of prosecution.
The plain language of the Organized Crime Control Act protects the witness from that risk. The law provides:
“[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case . . . .” 18 U. S. C. §6002 (emphasis added).
When a witness appears at a second proceeding and is asked whether the information that he was previously compelled to disclose to the grand jury was true, his responses are quite plainly “information directly or indirectly derived from such testimony.” This seems particularly obvious when the in*285terrogator’s only basis for his questions is the transcript of the grand jury proceeding.
This natural construction of the statute was endorsed by the Government immediately after the Organized Crime Control Act took effect. In a memorandum explaining the statute to United States Attorneys, the Assistant Attorney General in charge of the Criminal Division explained that it allowed an immunized witness to be prosecuted “if it can be clearly established that independent evidence standing alone is in fact the sole basis of the contemplated prosecution.” Dept, of Justice Memo No. 595, Supp. 1, Sept. 2, 1971, p. 5. He emphasized that, “[although the government may prosecute the witness on the basis of similar evidence obtained independently of the witness’s testimony in a rare case where such an independent source develops, as a practical matter it will be difficult for the government to prove an independent derivation, especially if the information first was divulged in the witness’s testimony.” Id., at 5, n. 4 (emphasis in original). And when the Solicitor General of the United States later appeared before this Court to defend the Act’s constitutionality, he based his argument in part on the proposition that the words “directly or indirectly derived” were intended to create an “extended use immunity” and should be construed broadly.5
*286This Court accepted the Solicitor General's argument. It upheld the use immunity statute after construing it to provide protection commensurate with the protection resulting from the invocation of the privilege itself:6 *287We held that evidence may be used in a subsequent prosecution only if the Government successfully demonstrates that it would have obtained that evidence even if the witness had never testified before the grand jury. See id., at 458-459; Murphy v. Waterfront Comm’n, 378 U. S. 52, 79.
*286“The statute provides a sweeping prohibition of any use, direct or indirect, of the compelled testimony and any information derived therefrom ....
“[The] burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony” Kastigar v. United States, 406 U. S. 441, 460 (emphasis added).
*287The questions that were propounded to the respondent at his deposition in this case called for answers that were presumptively within the scope of the statutory immunity. That presumption would protect him from the use in a subsequent criminal prosecution of any of the information contained in his answers unless it could be shown that the information would have been obtained even if the witness had never testified before the grand jury. Nothing in this record suggests that answers to questions based entirely on the grand jury transcript were not “fruits” of the prior testimony.7
The District Judge properly ruled that the respondent’s answers could not have been introduced against him at a subsequent criminal prosecution any more than the original testimony could have been. Moreover, if the respondent’s answers would be a necessary link in a chain that led to other information, then that information would also be “derived” from the prior testimony and likewise could not be used at a subsequent criminal prosecution. The witness therefore had no greater right to assert a constitutional privilege against *288self-incrimination in the second proceeding than he had in the grand jury proceeding itself.
HH h — I
Although the Court does not dispute the fact that respondent’s answers were within the scope of the immunity grant, ante, at 257, n. 13, it nevertheless places a great deal of reliance on “the Government’s interest in limiting the scope of an immunity grant,” ante, at 258. In my judgment the Court commits a triple error in this analysis. First, it uses policy judgments that could at most affect an interpretation of the use immunity statute in other cases to justify its erroneous interpretation of the Fifth Amendment in this case. Second, it misunderstands the prosecutorial interest in how the statute should be interpreted in those other cases. And third, it overlooks the obvious enforcement costs of its holding in this case. The first error does not need elaboration; the second two do.
A federal prosecutor does not offer immunity to a suspected criminal unless he expects to obtain important testimony that would not otherwise be available. The prosecutor realizes that, in almost all cases, an offer of immunity — even of use immunity — means sacrificing the chance to prosecute the witness for his own role in the criminal enterprise.8 The *289question is what kind of return society will get on the prosecutor’s investment in immunity. Once the prosecutor pays the immunity price, he will normally wish to probe deeply for evidence that will implicate the witness’ criminal associates as thoroughly as possible. The primary law enforcement interest is to maximize the amount of information that the witness provides. A broad construction of the immunity grant serves that purpose; a narrow construction can only motivate witnesses to be as unresponsive as possible.9
Yet the Court suggests that the Government prosecutors take a different attitude towards immunized witnesses. Even though the Government itself has not promoted such a view *290in the deposition proceedings in this case or by argument in this Court,10 the opinion of the Court suggests that when a prosecutor immunizes a witness in order to obtain particular information, he harbors an intent to indict the witness after-wards and would therefore prefer that the witness remain in the same peril of prosecution as before being immunized.11 Yet it defies human nature to presume that the witness would be just as cooperative during a 24-hour truce, knowing that hostilities will resume immediately thereafter, as he would be after signing a peace treaty.
Nor does the Court explain its assertion that applying the statute as it is written and as it was construed in Kastigar “in effect could invest the deponent with transactional immunity.” Ante, at 260. Transactional immunity is not at all the issue here. Transactional immunity would require the prosecutor to forfeit an open-and-shut case that he had already built independently. Use immunity, as explained in Kasti-*291gar and as granted to the respondent, allows the prosecutor to retain that case.12 I have found absolutely no evidence, and the Court cites none today, to support the implicit suggestion that Congress substituted “use immunity” for “transactional immunity” in order to allow prosecutors to take advantage of subsequent repetitions of immunized testimony.13
The Court’s reference to “transactional immunity” suggests a fear that ordering the respondent to answer a deposition question may somehow jeopardize legitimate efforts to prosecute him. Consideration of the facts of this particular case demonstrates that the Court’s apparent fear is baseless. Unless some prosecutor already has an independent basis for prosecuting the respondent — and nothing in the record suggests that any such independent basis exists — the Government has already agreed that he will not be prosecuted for engaging in illegal price discussions with Fred Renshaw and Dick Herman of the Alton Box Board. If, at the deposition, he is required to confirm that such discussions took place, *292how can that confirmation affect his criminal liability? If some prosecutor has a demonstrably independent basis for proving the respondent’s participation in the discussions, his confirmation will not make that basis any less demonstrably independent.14 And if that prosecutor has an independent basis for showing that the respondent participated in the discussions, that basis will be no less demonstrably independent if the respondent is required to identify the time, place, and other persons who participated in the discussions.
Furthermore, one should not overlook the societal costs— law enforcement costs — of the Court’s expansion of the Fifth Amendment. The public interest in obtaining the full and candid testimony of a witness with knowledge of the inner workings of a price-fixing conspiracy is both real and significant.15 Conceivably, a relatively brief account of the basic structure of the conspiracy might have been sufficient to persuade the grand jury to indict other parties and also to persuade those defendants to plead guilty or to enter into some other settlement with the Government.16 Even if a grand jury transcript is confined to a brief description of a price-*293fixing arrangement, for example, the public interest may well be served by allowing private parties who have been injured thereby to inquire into the details of the arrangement.17
The Court assumes that the scope of the Fifth Amendment privilege in this case should be expanded in order to serve society’s law enforcement interests. I do not accept this mode of Fifth Amendment interpretation. But even if I did, I would find the theoretical risk that compelled testimony could hamper a potential prosecution to be plainly outweighed by the enforcement interest in allowing the deposition to go forward. And, significantly, even the slight theoretical risk that concerns the Court is not presented by this case, in which no new incriminating information is called for by the deposition questions.
H-( HH HH
The Court makes the curious argument that the Fifth Amendment privilege must extend to testimony that could not incriminate a witness because otherwise the witness will be put to the risk of “predicting” whether a court in a later criminal proceeding would agree that the testimony was *294within the scope of the immunity. Ante, at 261-262. I do not agree that the “risk” that troubles the Court is entitled to protection under the Fifth Amendment.
A witness in the respondent’s chair at a deposition can do one of two things: he can answer or he can assert a Fifth Amendment privilege. If he answers, he is obviously more “at risk” under Justice Blackmun’s narrow view of the use immunity statute than under the broad one adopted in Kastigar. For that reason, the Court does not dispute the fact that if the respondent had answered the deposition questions in this case, his answers could not be used against him.18 The Court and I part company, however, in reacting to the risks that the witness faces if he asserts a Fifth Amendment privilege.
If the court supervising the deposition concludes that an answer is not “directly or indirectly derived” from prior immunized testimony, it must uphold the assertion of the Fifth Amendment privilege under both my analysis and the Court’s. If, on the other hand, the supervising court concludes that the answer is “directly or indirectly derived” from immunized testimony, I believe it must reject the asserted privilege. The Court disagrees, for two analytically distinct reasons.
First, the Court suggests that the supervising court might make a mistake in deciding whether the testimony is directly or indirectly derived. It suggests that in this case Judge Singleton might not have been able to “predetermine the decision of the court in a subsequent criminal prosecution on the *295question whether the Government has met its burden of proving that ‘the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.’” Ante, at 261. The Court does not explain what sort of evidence the prosecutor might subsequently be able to produce that would show the answers to be “wholly independent”; indeed, it is difficult to conceive how such evidence could possibly exist in this case. More importantly, the Court does not explain why the risk of error in this situation is different from the identical risk that exists whenever a privilege is asserted. The Court’s argument would require every trial judge always to honor a claim of privilege, no matter how obvious it may be that the claim lacks merit, to guard against being found wrong later.19
Second, the Court suggests, with Justice Marshall, that it would be unfair to require the witness to answer because “ ‘[f]urther incriminating evidence that is derived from compelled testimony cannot always be traced back to its source.’” Ante, at 262, n. 22, quoting ante, at 268. Yet such an argument applies with equal force to the entire concept of use immunity. Our holding in Kastigar rests squarely on the proposition that one may not assert a Fifth Amendment privilege on the basis of the risk that evidence might not be traced back to its source. Cf. Kastigar, 406 U. S., at 468-471 (Marshall, J., dissenting). Even if the Court were now prepared to retreat from that proposition, this case is surely not the proper vehicle. The respondent here was asked only to ratify or confirm facts that were already known. On this record, it clearly appears that the *296answers to the specific questions asked could not possibly provide any basis for prosecution, or even for investigation, beyond what was already provided by the grand jury testimony.20
In summary, it is perfectly clear on this record that the respondent’s deposition testimony (a) would be protected by the statutory immunity; (b) could not be used against respondent in a subsequent criminal proceeding; and (c) could not provide a prosecutor with any information he does not already have. A concern that a court might not decide some other case correctly cannot justify an incorrect disposition of the case before us.
I respectfully dissent.
The Fifth Amendment provides:
“No person . . . shall be compelled in any criminal case to be a witness against himself. ...”
See 18 U. S. C. §§6002, 6003, quoted by the Court, ante, at 253-254, nn. 9 and 10.
This second proceeding happens to have been a pretrial deposition in a civil case, but the issue before us would be no different if the second proceeding had been a criminal trial of respondent’s co-conspirators, or a coroner’s inquest. Respondent happens to have been represented by able counsel at the second proceeding, but again the scope of his immunity would be no different if he had not had a lawyer and had simply answered the questions that were propounded. Moreover, the fact that respondent *284asserted his privilege against self-incrimination has nothing to do with the availability of the privilege — a matter which is dependent entirely on whether the content of a truthful answer to the questions that were propounded could be used against him in a later criminal trial. His reluctance or willingness to testify would determine whether he elected to assert his privilege or to waive it, but has nothing to do with the existence or nonexistence of the privilege itself.
One insignificant nonincriminating fact would be added. The grand jury transcript establishes (1) that respondent had price communications with Fred Renshaw and Dick Herman and (2) that he remembered those communications at the time of his grand jury testimony; an answer to the deposition question would establish the additional fact that respondent still remembers those communications. That additional fact is not itself incriminating and certainly is information indirectly derived from the grand jury transcript within the meaning of the statute.
In relevant part, the argument reads:
“[MR. GRISWOLD:]... As to evidence first discovered after immunity has been granted, there should be a heavy burden on the government to show that any such evidence is not the fruit of a lead or clue resulting from or uncovered by the compelled testimony. This should not be a conclusive presumption because there can be cases where the government can demonstrate that such evidence was independently derived. It comes in the mail, for example, the day after the testimony was given and it had been postmarked in France a week before.
“Q. Well, Mr. Solicitor General, what about the situation . . . where the government does compel a testimony and the testimony is given and this induces the prosecutor not to use the testimony except to launch an investí-*286gation and by independent means, wholly unrelated to the testimony except by the fact that it was given, search out, independently—
“MR. GRISWOLD: That is a hard question, but I think if it does appear that the investigation was the consequence of the evidence being given, that then the evidence is something which was indirectly derived as a result of the testimony given.
“Q. Would you—
“MR. GRISWOLD: I would construe directly and indirectly quite broadly and I would put the burden on the government with respect to evidence derived after the testimony is given.
“Q. So ‘but for,’ you put on a ‘but for’ test in the sense that except for the testimony the government would never have had it?
“MR. GRISWOLD: Almost, Mr. Justice. On the other hand, I hate very much to give conclusions about purely hypothetical cases, knowing full well the practical situations that can arise which will make it look differently, but I'm perfectly free to say that I think there should be a heavy burden on the government to show that the evidence it wants to use was not directly or indirectly derived from the testimony.” Tr. of Oral Arg. in Kastigar v. United States, O. T. 1971, No. 70-117, pp. 30-32.
See also the Solicitor General’s brief in Kastigar, quoted in nn. 8, 9, 12, infra.
If the grant were not at least that broad, a witness obviously could not be compelled to testify before a grand jury. See Counselman v. Hitchcock, 142 U. S. 547; Ullmann v. United States, 350 U. S. 422, 436-438.
Cf. Harrison v. United States, 392 U. S. 219. In his opinion concurring in the judgment Justice Blackmun seems to assume that the “fruits” inquiry focuses on the state of mind of the deposition witness rather than on the historical derivation of the evidence. He suggests that if the witness “elects” to answer a question, his response is not a fruit and therefore is not directly or indirectly derived from the prior testimony. Even under that approach, however, I would think the question is whether the witness has any choice in the matter. He is being asked about incriminating testimony that, by hypothesis, he would prefer not to repeat. Nevertheless, since he is under subpoena, he must speak unless he has a valid Fifth Amendment privilege, and neither the Constitution nor the statute vests him with any power to decide whether he does.
As the Solicitor General assured us in Kastigar: “The immunity provision involved in this case was not passed for the purpose of enabling law enforcement officials to compel self-incriminating information from witnesses and then prosecute them for routine matters.” Brief for United States in Kastigar v. United States, O. T. 1971, No. 70-117, pp. 32-33.
This fact was emphasized to the Congress that passed the use immunity provision. The Assistant Attorney General in charge of the Criminal Division of the Department of Justice testified that, “[a]s a practical matter, where the witness has elected to testify under this statute, and he has been used, it would be a most unusual circumstance for the Government that used him to turn around and prosecute him.” Hearings on H. R. 11157 and H. R. 12041 before Subcommittee No. 3 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 47 (1969) (statement of Will Wilson).
*289And a member of the Commission on Reform of the Federal Criminal Law, testifying in support of the statute, stated:
“I think there is one other thing about this that probably ought to be pointed out and that is that in most instances a grant of immunity is going to be made to a willing witness who isn’t going to be prosecuted at all. That is probably the most important aspect of the whole matter. The prosecution will have just as much of an interest in protecting the interests of the person who has served the purposes of law enforcement in that regard as can be. As a consequence fears for the person who has willingly cooperated under the grant of immunity are, I think, probably more fanciful than real.” Id., at 53-54 (statement of Judge George Edwards).
As of October 1, 1976, these predictions had proved true. On that date, the Attorney in Charge at the Freedom of Information Privacy Unit of the Criminal Division of the Department of Justice wrote a letter to a research scholar. The letter reported that, while the Immunity Unit did not maintain statistics on the number of times witnesses had been subsequently prosecuted for matters disclosed in their immunized testimony, “if any such instances exist, they are rare.” Note, 14 Am. Crim. L. Rev. 275, 282, n. 46 (1976).
The Solicitor General made this point in a slightly different manner in his Kastigar brief:
“A practical reason for refraining from subsequent prosecution of a person who provides information is that the government has a vital interest in assuring the continued and unimpeded flow of information concerning criminal activities, and this interest may be furthered if a witness believes he will not be prosecuted.” Brief for United States in Kastigar v. United States, O. T. 1971, No. 70-117, p. 34.
The Solicitor General regularly provides us with briefs amicus curiae in cases in which the Government’s enforcement interests are implicated. He filed no such brief in this case and apparently asserted no objection to petitioners’ use of the grand jury transcript as a basis for questioning of deposition witnesses, including respondent.
See ante, at 260. The testimony quoted in n. 8, supra, describes this suggestion as “more fanciful than real.” For a view that is more real than fanciful, see the testimony of the Assistant Attorney General for the Criminal Division of the Department of Justice in Hearings on H. R. 11157 and H. R. 12041, supra n. 8, at 41-42 (statement of Will Wilson). That testimony identified the prototypical situations where use immunity would be valuable: where the prosecutor wants to induce someone who is already in prison to testify about a different conspiracy in exchange for a reduction in the existing sentence; where a suspect’s attorney offers his client’s assistance “in exchange for some type of immunity from that crime which we are investigating”; where the prosecutor’s investigation has focused on an agent of a principal “and we decide as a matter of policy that it is more important to prosecute the principal than the agent”; and where a minor actor refuses to testify out of loyalty to a major actor, as in the case of a bookie’s customers — “[ojbviously the Government isn’t interested in extensive prosecution of 200 or 300 people who simply placed bets, so you use the immunity grant there to make the case against the central person.”
As the Solicitor General explained in Kastigar, there may be occasions in which an immunized witness is led unexpectedly (by cross-examination at trial, or by grand juror questions) to testify about a new crime, “with respect to which the prosecution may possess overwhelming evidence.” Brief for United States in Kastigar v. United States, O. T. 1971, No. 70-117, p. 36. Although the Government was willing to give “ ‘absolute immunity’ as to any matter to which the witness testified]” in “a limited area,” the Government should not be made to abandon an independent case. Ibid.
The United States Attorneys’ Manual, Title I, Ch. 11, p. 2 (revised Dec. 15, 1981), explains the real reasons why the Government prefers use immunity to transactional immunity:
“[T]hey have, under appropriate circumstances, significant advantages over former ‘transactional immunity’ statutes in that they provide no gratuity to a testifying witness, they encourage the giving of more complete testimony by proscribing [the] use of everything the witness relates, and they still permit a prosecution of the witness in the rare case where it can be shown that the supporting evidence clearly was obtained only from independent sources.”
In his argument in Kastigar, the Solicitor General seemed to assume that an adequate demonstration that evidence had an independent source would normally involve proof that the source antedated the grand jury testimony. See n. 5, supra. In this case respondent’s grand jury testimony was given in 1978 and the deposition was taken in 1981. It would be much easier to prove that the basis for a possible future prosecution had a pre-1981 source than a pre-1978 source.
The enforcement interest described in the text supplements the general public interest in accurate factfinding, an interest that is also hindered by the Court’s holding. Cf. Lord Chancellor Hardwicke’s oft-quoted phrase, “the public has a right to every man’s evidence,” 12 T. Hansard, Parliamentary History of England 675, 693 (1812), quoted in Kastigar v. United States, 406 U. S. 441, 443.
It is not unusual to accept a civil consent decree or a modest penalty in exchange for the dismissal of criminal charges under the antitrust laws.
The Court suggests, ante, at 259-260, that cross-examination somehow poses unique problems in this case. Yet it concedes that it is not unusual for a valid assertion of a Fifth Amendment privilege to inhibit cross-examination as to collateral matters such as credibility. Ante, at 260, n. 19. It is thus concerned only that cross-examination might not be allowed on matters about which the witness testified on direct examination because such cross-examination will produce information not elicited on direct. I do not understand why such cross-examination would not be allowed; even if the information were not itself elicited on direct, it would concern a matter about which the witness was required to testify on direct and would thus be derived from the prior immunized testimony in the same way as the direct examination. But even if it were possible that a valid assertion of the Fifth Amendment privilege might so restrict cross-examination that a deposition answer would be inadmissible at trial, that is surely not a sufficient reason to establish a constitutional privilege against giving the direct testimony.
It is true, of course, that a witness will risk having his extended testimony used against him later if he makes statements that are not derived from his grand jury testimony. But the assumption that counsel would not be able to identify those “danger areas” demeans the competence of our trial bar. The problem raised by such testimony is essentially the same as the problem presented when any witness testifies in a manner that might be exploited to uncover evidence against him. When in doubt, prudent counsel can always obtain an authoritative court ruling by having the witness assert the Fifth Amendment privilege.
The Court is somewhat misleading when it discusses the risk that a trial judge may erroneously reject an assertion of a Fifth Amendment privilege in a paragraph that discusses risks borne by the witness, Such a risk is obviously borne by the government, which may not make use of testimony that is “wrongfully compelled” by a judge. Maness v. Meyers, 419 U. S. 449, 474 (White, J., concurring in result). Cf. Garrity v. New Jersey, 385 U. S. 493, 500 (government may not use statements obtained under threat of removal from public office).
The Court also notes that requiring the respondent to speak increases the risk that he may reveal that he perjured himself before the grand jury, as well as the risk that he may be exposed to civil liability for his misdeeds. Ante, at 262, n. 22. But potential civil liability has never been held to establish a Fifth Amendment privilege. Cf. Ullmann v. United States, 350 U. S., at 430-431; Brown v. Walker, 161 U. S. 591, 605-606. And respondent has never suggested that he asserted the privilege to avoid the risk of prosecution for perjury; the Court does not explain why that risk could not be evaluated case by case when and if it is asserted.