Garrity v. New Jersey holds that when a police department orders its employee to answer questions, under the threat of termination, the Fifth Amendment prohibits the employee’s statement from being used against him or her in a subsequent criminal prosecution. 385 U.S. 493 (1967). Garrity statements can be oral or written, and often occur during internal investigative interviews relating to incidents of alleged misconduct.
In 2006, the Michigan Legislature codified the Fifth Amendment’s Garrity protections by passing the Disclosures by Law Enforcement Officers Act (“DLEOA”). MCL 15.391 et seq. In addition to codifying protections under Garrity, the DLEOA prohibits a law enforcement agency from disclosing a police officer’s compelled statement. MCL 15.395.
One exception to the DLEOA’s non-disclosure rule causes concern for some union attorneys representing police officers. MCL 15.395(b) permits a law enforcement agency to disclose the police officer’s compelled statement to prosecutors who are pressing charges against the police officer.
The fear is not so much that the prosecutor will use compelled statements in the criminal prosecution against the police officer, because the Fifth Amendment and DLEOA plainly prohibit the use of such statements under such circumstances. MCL 15.393. Rather, the fear is that the prosecutor will use these statements as a means to unearth other incriminating evidence. This concern is likely misplaced.
The Fifth Amendment prohibits not only the use, but also the derivative-use, of a police officer’s compelled statement in subsequent criminal proceedings.
The Fifth Amendment of the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The Fifth Amendment privilege “not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also privileges him not to answer official questions put to him in any other proceeding . . . where the answers might incriminate him in future criminal proceedings.” People v. Wyngaard, 462 Mich. 659, 671-72, (2000) (internal citations omitted).
One of these “other” proceedings is a law enforcement agency’s internal investigation of its officer. During the course of an internal investigation, if a police officer’s employer orders the officer to make a statement under the threat of termination, then that statement is coerced. Because the statement is coerced, it cannot be used in the officer’s subsequent criminal proceeding. Garrity, 385 U.S. at 497. “The choice given to [the officers] was either to forfeit their means of livelihood or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice.”
Garrity applies only when an officer is compelled to provide a statement. The circuits are split regarding the severity of employment sanction necessary for compulsion to exist. For example, the D.C. Circuit and 11th Circuit require that the employer threaten the officer with job dismissal for the refusal to provide a statement. U.S. v. Vangates, 287, F.3d 1315, 1322 (11th Cir. 2002); U.S. v. Friedrick, 842 F.2d 382, 395 (D.C. Cir. 1988). The Sixth Circuit, on the other hand, only requires that the officer reasonably believe that “substantial penalties,” such as suspension, are likely to result from his or her refusal to provide a statement. McKinley v. City of Mansfield, 404 F.3d 418, 436 (6th Cir. 2005).
Once police officers assert their Fifth Amendment privilege, employers cannot terminate them for refusing to incriminate themselves. Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation of City of New York, 392 U.S. 280, 284 (1968). But if a police department grants its police officer immunity from the use of the compelled statement and immunity from all evidence derived from the compelled statement, and the officer refuses to cooperate, then the department may terminate the officer for refusing to make a statement. Natl Union of Police Officers, Local 502-M, AFL-CIO v. Lucas, 79 Mich. App. 445, 447-48 (1977). Use and derivative-use immunity is “coextensive with the scope of the privilege against selfincrimination, and therefore . . . [granting it] is sufficient to compel testimony over a claim of the privilege.” Kastigar v. U.S., 406 U.S. 441, 448-49, 453 (1972).
In sum, the Fifth Amendment prohibits the use and derivative-use of a police officer’s compelled statement in the officer’s subsequent criminal proceedings. In the Sixth Circuit, compulsion exists (and thus the officer has the right to assert his Fifth Amendment privilege) where a police officer reasonably believes that he will face “substantial penalties” for failing to cooperate in his employer’s internal investigation. A threat of termination is not required.
The protections afforded police officers under the DLEOA are likely more extensive than protections under the Fifth Amendment.
As with the Fifth Amendment, the DLEOA also prohibits the use and derivative-use of a police officer’s compelled statement in the officer’s subsequent criminal proceedings.
Although the statute’s legislative history suggests otherwise, its text suggests that police officers’ protections under DLEOA are even more extensive than under the Fifth Amendment.
Michigan’s DLEOA prohibits a prosecutor from using involuntary statements made by law enforcement officers during internal investigative proceedings in criminal prosecutions. MCL 15.391(a) defines an “involuntary statement” as “information provided by a law enforcement officer, if compelled under threat of dismissal from employment or any other employment sanction, by the law enforcement agency that employs the law enforcement officer.”
“Involuntary statements” under DLEOA are broader in scope than “coerced statements” under the Fifth Amendment. Under the Fifth Amendment, a police officer’s statement is “coerced” if the officer reasonably believed that he would face substantial employment penalties for the failure to answer his employer’s questions. Under the DLEOA, however, a police officer’s statement is “involuntary” if the officer is threatened with any employment sanction.
Protections under the DLEOA are possibly more extensive than under the Fifth Amendment in a second respect. The DLEOA prohibits a police officer’s involuntary statement from being used against the officer “in a criminal proceeding.” MCL 15.393 (emphasis added).
The Fifth Amendment permits the government to use compelled statements obtained during internal investigations if the use is limited to a prosecution for collateral crimes such as perjury or obstruction of justice. McKinley v. City of Mansfield, 404 F.3d 418, 427 (6th Cir. 2005). DLEOA’s use of the indefinite article “a,” and not “the,” to modify the phrase “criminal proceeding” suggests that DLEOA prohibits the use of involuntary statements in all criminal prosecutions – even those prosecutions for collateral crimes. 1
Allaying the concerns that the DLEOA has muddied the waters for self-incrimination protections in Michigan, the protections afforded under DLEOA are at least as extensive as those under the Fifth Amendment.
The DLEOA does not negate a prosecutor’s affirmative duties imposed under Kastigar.
However, even if the protections afforded to police officers under DLEOA were somehow less extensive than under the Fifth Amendment, DLEOA would not permit prosecutors to shirk from their constitutional duties.
DLEOA (MCL 15.395) precludesthe disclosure of involuntary statements, except in four enumerated instances. One of these exceptions is disclosure to a prosecuting attorney pursuant to a (1) search warrant, (2)subpoena, or (3) court order. MCL 15.395(b). On itsface, MCL 15.395(b) appearsto permit the prosecution to exploit an officer’sinvoluntary statement to discover incriminating evidence. Thisfear is misplaced, however, because (1) prosecutors had access to Garrity statements before Michigan enacted the DLOEA; and (2) federal constitutional law restricts this method of criminal investigation by imposing an affirmative duty on the prosecution.
First, even before the enactment of DLEOA, Garrity statements were public information discoverable by anyone, including prosecuting attorneys. The enactment of DLEOA came at the heels of In re Morton, which permitted the prosecution to subpoena Garrity statements from a police department. 258 Mich. App. 507 (2003). In re Morton explained, “because this case deals only with the production of the statements and not their improper use in a criminal proceeding against the officers, the Fifth Amendment has no application here.” Id. at 509.
Second, even though a prosecutor has access to an officer’s compelled statement, the prosecutor may not use the statement, or any evidence derived from the statement, in the officer’s criminal prosecution. Further, the prosecution must prove that it did not use the evidence.
In Kastigar v. U.S., the petitioner argued that use and derivative-use immunity would not adequately protect defendants because prosecutors would use a compelled statement to “obtain leads, names of witnesses, or other information not otherwise available that might result in a prosecution.” 406 U.S. 441, 459 (1972). The Court disagreed because the “total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an ‘investigatory lead.’” Id. at 460. The prosecution must prove “that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence. This burden of proof . . . 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.” Id. at 460. 2
Furthermore, in order to assess whether all of the prosecution’s evidence has been derived from sources completely independent of the police officer’s compelled statement, a court will review the prosecutor’s proposed evidence “witness by witness,” and, if necessary, it will “proceed line by line and item by item.” U.S. v. Ford, 176 F.3d 376, 381 (6th Cir. 1999).
If the prosecution fails to meet its burden at a Kastigar hearing, then, at best, the court excludes the proposed evidence. At worst, it will dismiss the State’s case altogether. See, U.S. v. Hubbell, 530 U.S. 27 (2000).
While the DLEOA codifies a prosecutors access to Garrity statements, it is silent in regards to a prosecutor’s affirmative duty to prove all proposed evidence derives from sources “wholly independent” from a police officer’s immunized statement. Here, the federal constitutional law fills the apparent gap in DLEOA.
Kastigar fills all apparent gaps regarding disclosing a police officer’s involuntary statement to the prosecution under DLEOA.
Union attorneys representing police officers in internal investigations with criminal prosecution implications have no reason to fear DLEOA’s provisions, which permit their client’s employer to disclose their client’s Garrity statement to the prosecution under limited circumstances. MCL 15.395(b). The Fifth Amendment and the DLEOA prohibits the statement’s use and any evidence derived from the statement from the client’s criminal prosecution. Moreover, while DLEOA is silent on the issue of a prosecutor’s duty, Fifth Amendment jurisprudence trumps DLEOA’s facial ambiguity, and requires prosecutors who receive the compelled statements to meet their burdens at Kastigar hearings.
Indeed, prosecutors should tread carefully when subpoenaing the defendant’s compelled statement, since any prosecutor who does so is, at best, wasting his or her time, and, at worst, risking the State’s case.
—END NOTES— 1 The Michigan Supreme Court recently granted leave to appeal and will decide this matter soon. See People v. Hughes, 306 Mich. App. 116 (2014) appeal granted sub nom. People v. Harris, 497 Mich. 958 (2015). 2 The exclusion of immunized statementsfrom trial issometimes described asthe “exclusionary rule for the FifthAmendment’s privilege againstself-incrimination clause. Thislabel, however, is a misnomer. In general, an exclusionary rule is a judicial remedy to correct wrongfully obtained evidence. An immunized statement is not wrongfully obtained; rather the exclusion is a constitutional imperative required by the Fifth Amendment itself. New Jersey v. Portash, 440 U.S. 450, 459 (1979) (“Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and FourteenthAmendments provide a privilege against compelled selfincrimination, not merely against unreliable self-incrimination. [Immunized testimony deals] with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, [of interests], therefore, is not simply unnecessary. It is impermissible.”). See also, Mincy v. Arizona, 437 U.S. 385 (1978). Moreover, the fruit-of-the-poisonous-tree doctrine equally does not apply to immunized statements (e.g. Garrity statements). Fruits derived from immunized statements are inadmissible not because the tree is poisonous, but rather because of the government’s constitutional promise not to eat it.
Published in Labor & Employment Law Notes Vol. 25, No. 2. Co-authored with Craig Lange, Partner, Kirk, Huth, Lange, Badalamenti, PLC.
