In Counselman v. Hitchcock (1891), the U.S. Supreme Court ruled that a witness cannot be compelled to testify if there is any possibility of self-incrimination, even in cases where immunity from prosecution has been granted for the offenses involved in the testimony. The case arose when Albert B. Counselman, a grain commission merchant, was subpoenaed by a grand jury investigating violations of Interstate Commerce Act and refused to answer certain questions on grounds that his answers could incriminate him under state law or federal law not covered by offered immunity statute. The court held that Fifth Amendment protection against self-incrimination extends beyond criminal trials and applies also to grand jury proceedings or other situations where an individual's testimony might later be used against them criminally.

In the dissenting opinion for Counselman v. Hitchcock, Justice Brown disagreed with the majority's interpretation of the Fifth Amendment and its application to this case. He argued that a witness should not be allowed to refuse testimony on grounds of self-incrimination unless it is clear that such testimony would indeed incriminate them. According to him, if every question could potentially lead to criminal liability, then no one would ever testify in court cases involving illegal activities. This broad interpretation of protection against self-incincrimination undermines the judicial process by making it difficult or impossible for courts to gather necessary evidence in criminal proceedings. Therefore, he believed that immunity should only apply when there is a real danger of prosecution based on provided testimonies rather than hypothetical risks.