CHAPTER 3CASE ADMINISTRATION
Sub Chapter III Administration
Sec. 344. Self-incrimination; immunity
Immunity for persons required to submit to examination, to testify,
or to provide information in a case under this title may be granted
under part V of title 18.
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2565.)
Historical and Revision Notes
senate report no. 95-989
Part V [Sec. 6001 et seq.] of title 18 of the United States Code
governs the granting of immunity to witnesses before Federal tribunals.
The immunity provided under part V is only use immunity, not
transactional immunity. Part V applies to all proceedings before Federal
courts, before Federal grand juries, before administrative agencies, and
before Congressional committees. It requires the Attorney General or the
U. S. attorney to request or to approve any grant of immunity, whether
before a court, grand jury, agency, or congressional committee.
This section carries part V over into bankruptcy cases. Thus, for a
witness to be ordered to testify before a bankruptcy court in spite of a
claim of privilege, the U. S. attorney for the district in which the
court sits would have to request from the district court for that
district the immunity order. The rule would apply to both debtors,
creditors, and any other witnesses in a bankruptcy case. If the immunity
were granted, the witness would be required to testify. If not, he could
claim the privilege against self-incrimination.
Part V is a significant departure from current law. Under section
7a(10) of the Bankruptcy Act [section 25(a)(10) of former title 11], a
debtor is required to testify in all circumstances, but any testimony he
gives may not be used against him in any criminal proceeding, except
testimony given in any hearing on objections to discharge. With that
exception, section 7a(10) amounts to a blanket grant of use immunity to
all debtors. Immunity for other witnesses in bankruptcy courts today is
governed by part V of title 18.
The consequences of a claim of privileges by a debtor under proposed
law and under current law differ as well. Under section 14c(6) of
current law [section 32(c)(6) of former title 11], any refusal to answer
a material question approved by the court will result in the denial of a
discharge, even if the refusal is based on the privilege against self
incrimination. Thus, the debtor is confronted with the choice between
losing his discharge and opening himself up to possible criminal
Under section 727(a)(6) of the proposed title 11, a debtor is only
denied a discharge if he refuses to testify after having been granted
immunity. If the debtor claims the privilege and the U. S. attorney does
not request immunity from the district courts, then the debtor may
refuse to testify and still retain his right to a discharge. It removes
the Scylla and Charibdis choice for debtors that exists under the
Bankruptcy Act [former title 11].
Section Referred to in Other Sections
This section is referred to in sections 521, 901 of this title.