According the Court’s opinion, a police officer had been placed on administrative leave and then was involved in a bar fight, where one of the patrons informed the responding patrol officer that the suspended/fighting officer had possessed a firearm inside the tavern (in violation of Ohio law). The suspended/fighting officer was then investigated by Internal Affairs. Under Garrity v. New Jersey (1967), 385 U.S. 493, as a public employee, he could not be compelled to cooperate with the internal investigation in violation of his Fifth Amendment right against self-incrimination by being told to choose between his maintaining his employment and incriminating himself. Rather, he was given a “Garrity” warning: nothing he said during the internal investigation would be used in a criminal prosecution, but failing to respond completely and truthfully to the questions could lead to disciplinary action. After receiving the warning, he answered the questions of the Internal Affairs investigating officer and identified a witness who was otherwise unknown to the police.
The Prosecutor’s Office then presented evidence to the grand jury about the officer’s unlawful possession of a firearm in a tavern. This evidence did not include any admissions or other information from the accused officer, including any evidence about the new witness. It did, however, include testimony from the Internal Affairs investigating officer limited to whether an officer should carry a firearm while on administrative leave and to the fact that he had interviewed the officer as part of an internal investigation. He did not disclose any information obtained from the officer during the Internal Affairs investigation (although the grand jury could conceivably presume the content of the statement from the fact that the officer was being prosecuted following the interview).
A new prosecutor was assigned to handle the trial and somehow both the grand jury and trial prosecutors came into possession of the officer’s Garrity statement before the commencement of a criminal trial. In fact, it was unclear whether the grand jury prosecutor came into possession of the statement before the grand jury returned the indictment. When the officer learned this, he moved to dismiss the indictment on the grounds that the government had improperly used his Garrity statement to assist his criminal prosecution. The trial court agreed, but the Court of Appeals reversed. The appellate court determined that the trial preparation of the prosecuting attorney should not benefit from a review of the Garrity statement, but that the indictment had not been tainted because the Internal Affairs officer did not reveal any information from the Garrity statement to the grand jury. Thus, the proper remedy was to purse the prosecutor’s file of the Garrity statement, reassign the case and recommence the process from the time of the indictment. The Supreme Court reversed and held:
In a criminal proceeding against a public employee, the state may not make direct or derivative use of the employee’s statement that was compelled under
threat of the employee’s removal from office (“Garrity statement”) — The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to a Garrity statement — The state makes derivative use of a Garrity statement when the prosecutor reviews a Garrity statement in preparation for trial — When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.
Rather, the Court concluded that the prosecution must be able to prove that its evidence was independently derived of the Garrity statement:
[T]he Kastigar court established a two-prong test that the
prosecution must satisfy where a witness makes the claim that his or her immunized testimony was used: (1) the government must deny any use of the accused’s own immunized testimony against him or her in a criminal case; and (2) the government must affirmatively prove that all of the evidence to be used at trial is derived from sources wholly independent of immunized testimony.” (Emphasis sic.) State v. Conrad (1990), 50 Ohio St.3d 1, 4, 552 N.E.2d 214.
Thus, in this case, the prosecution violated Garrity by utilizing a witness from the internal investigation: ”The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to the statement.” No harm which results from a broken Garrity promise can be harmless. Thus, the only proper remedy is dismissal of the indictment. “When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.” On the other hand, if the misuse had only occurred after the indictment had been obtained, the proper remedy would be limited to suppressing the improper evidence during the criminal trial (even if the trial prosecutor had knowledge of the Garrity statement).
Although Court recognized that this will create a hardship for small departments and entities (which might not have enough qualified personnel to both conduct the internal investigation and the criminal investigation), it suggested delaying the internal investigation until after the conclusion of the criminal investigation (which would then permit the accused employee to continue working and drawing a public salary following a legal breach). The Court did not suggest, but should be consider, retaining another entity or department to conduct the internal investigation.
The Court further explained:
Although the issue of liability for turning over a compelled statement is not before us, we note that a public employer can ensure that it does not violate the defendant’s right against self-incrimination only by refraining from providing a compelled statement to the prosecutor when a criminal proceeding ensues. A bright-line prohibition against providing a compelled statement to a prosecutor is both workable and practical. First, because a prosecutor is not permitted to make any use of a compelled statement, denying the prosecutor the opportunity to view the statement will not hinder the prosecutor’s ability to prepare for trial. Second, when a defendant cannot allege that the prosecutor has made use of the statement, there is no need to conduct a time-consuming Kastigar hearing. Finally, when there is no threat that a prosecutor will eventually see the contents of a compelled statement, public employees will be more willing to comply with internal investigations.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
