STEVEN N. WELCH
Rains Lucia Stern St. Phalle & Silver, PC
The purpose of this article is to provide a guide regarding the use of compelled administrative statements in subsequent criminal prosecutions. The article consists of three parts: a background regarding compelled administrative statements and immunity; an explanation regarding whether compelled administrative statements may be used to impeach a defendant officer who elects to testify at a subsequent criminal trial; and the potential consequences of the release of an officer’s compelled administrative statement pursuant to amended Penal Code §832.7 (SB 1421).
In Garrity v. State of New Jersey (1967) 385 U.S. 493, 494, officers were interrogated regarding alleged ticket fixing. Before being questioned, the officers were warned that if they refused to answer questions (based on their Fifth Amendment constitutional guarantee to not be “compelled in any criminal case to be a witness against himself”) they would be terminated (Id., fn. 1). The officers’ answers were used in subsequent criminal prosecutions. The U.S. Supreme Court ruled that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic” (Id. at 500). Therefore, an officer’s compelled administrative statement may not be used in a subsequent criminal prosecution of that officer.
In Gardner v. Broderick (1968) 392 U.S. 273, 274, a New York City officer was subpoenaed to appear before a grand jury, advised of his privilege against self-incrimination and asked to sign a “waiver of immunity” after being told that he would be fired if he did not sign the waiver. The officer refused to sign the waiver and was discharged. (Id.) The U.S. Supreme Court ruled that the officer could not be discharged for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege (Id. at 278, citing Garrity v. State of New Jersey, supra). The court in Gardner ruled that the officer could have been terminated if he continued to refuse to answer questions on Fifth Amendment grounds after he was granted immunity from use of his answers, or the fruits thereof, in a subsequent criminal prosecution. (Id.) Therefore, an officer may be compelled to give an administrative statement if the officer is granted immunity.
In Kastigar v. United States (1972) 406 U.S. 441, 444-445, the U.S. Supreme Court asserted that the Fifth Amendment privilege against compulsory self-incrimination can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. In Lefkowitz v. Turley (1973) 414 U.S. 70, 77, the U.S. Supreme Court, citing Kastigar, asserted that a witness protected by the privilege may rightfully refuse to answer questions unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. This guarantee against the use of a compelled statement and any evidence derived therefrom in a subsequent criminal prosecution is called “use” and “derivative use” immunity.
California Government Code §3303(h) provides that, “if prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights.” In Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 829, the California Supreme Court ruled that those “constitutional rights” are Miranda rights, as modified by the Lefkowitz/Garrity rule. In Lybarger, an LAPD officer was interrogated by the Internal Affairs Division and advised that if he refused to cooperate in the administrative interview, he could be charged with insubordination and could lose his job. Officer Lybarger was then ordered to cooperate. Lybarger refused to answer questions and was removed from his position. The court found that Lybarger should have been advised that “although he had the right to remain silent and not incriminate himself, (1) his silence could be deemed insubordination, leading to administrative discipline, and (2) any statement made under the compulsion of the threat of such discipline could not be used against him in any subsequent criminal proceeding.” (Id.) Therefore, if an officer may be charged with a criminal offense, the department must advise the officer of, and therefore grant, use and derivative use immunity prior to compelling the officer to provide an administrative statement.
Can a Compelled Administrative Statement Be Used to Impeach at a Subsequent Criminal Trial?
In New Jersey v. Portash (1979) 440 U.S. 450, 451, Joseph Portash was a mayor who was subpoenaed to testify before a grand jury. Portash expressed his intention to claim his Fifth Amendment right against self-incrimination. The prosecutors and Portash’s lawyers then agreed that, if Portash testified before the grand jury, neither his statements nor any evidence derived from them could be used in a subsequent criminal proceeding. This use and derivative use immunity is the same immunity granted to officers for compelled administrative statements, as previously discussed. The U.S. Supreme Court ruled that a person’s testimony under a grant of immunity cannot constitutionally be used to impeach him when he is a defendant in a later criminal trial (Id. at 459-460). The court in Portash (at p. 459) ruled that:
The Fifth and the Fourteenth Amendments provide that no person “shall be compelled in any criminal case to be a witness against himself.” As we reaffirmed last Term, a defendant’s compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial. “But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law.”
The U.S. Supreme Court reiterated this position in Kansas v. Ventris (2009) 556 U.S. 586, 590, “[t]he Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise.”
Therefore, an officer’s compelled administrative statement may not be introduced at that officer’s subsequent criminal trial to impeach that officer if the officer elects to testify.
Consequences of Amended Penal Code §832.7
Effective January 1, Penal Code §832.7 was amended to contain a multitude of exceptions to the maintenance of confidentiality of peace officer personnel records for certain listed categories of internal affairs investigations and to make those records available for public inspection pursuant to the California Public Records Act. The records now subject to disclosure include, among other things, investigative reports, transcripts or recordings of interviews, all material compiled and presented to any other body charged with determining whether the officer’s action was consistent with law and agency policy and copies of all disciplinary records relating to the incident (“Senate Bill 1421 Makes 4 Separate Categories of Internal Affairs Investigations Subject to Disclosure as ‘Public Records’,” Mellk, Gidian and Rains, Michael, The Vanguard, November 2018, pp. 22-23).
Penal Code §832.7 may be construed to require public release of an officer’s compelled administrative statement. In Kastigar v. U.S. (1972) 406 U.S. 441, 453, the U.S. Supreme Court held that the government can compel witness testimony upon an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring use and derivative use immunity (People v. Gwillim  223 Cal.App.3d 1254, 1266). Once a defendant establishes that he has testified pursuant to a grant of use and derivative use immunity to the matter related to the prosecution, the prosecution has 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 at p. 460).
Construing a district attorney’s access to an officer’s compelled statement, the Sixth District Court of Appeal in People v. Gwillim (1990) 223 Cal.App.3d 1254, 1270, wrote:
“We are compelled, however, to add the following caveat: Although the district attorney may have a statutory right under section 832.7 to obtain a police officer’s immunized statements, we do not hold that the district attorney must or should receive such a statement. Depending on the nature of the immunized statement and the circumstances of a given case, a district attorney with knowledge of defendant’s immunized statement may be unable to show that a criminal case can be prosecuted without use of the statement. For this reason, the district attorney’s decision whether to receive an immunized statement under the authority of section 832.7 should be made in contemplation of the risk involved.”
In Gwillim, the court ruled that the “district attorney is bound by this immunity agreement and may not use defendant’s statement to advance the criminal prosecution in any way” (Gwillim at 1272-1273).
As previously discussed, an officer must be granted use and derivative use immunity in order to be compelled to submit to an administrative interview when the officer may be charged with a criminal offense. Penal Code §832.7 contains subsections that discuss justifications to delay release of the records. However, if an officer’s compelled administrative statement is released to the public, a prosecutor at a later criminal trial of that officer may face the heavy, and possibly insurmountable, burden of the requirements of Kastigar.
This article provides a guide regarding the potential use of compelled administrative statements in subsequent criminal prosecutions. Of course, should you be in a situation where you are notified that your department wants to interview you regarding any matter that could potentially result in criminal charges, you should immediately contact PORAC LDF in order to have an attorney represent you and protect your rights.
About the Author
Steven N. Welch is a member of the Rains Lucia Stern St. Phalle & Silver Legal Defense Group. Steve represents peace officers in administrative investigations, disciplinary appeals, critical incident investigations and criminal investigations.
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- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Tai Pena-Hornung Oakland POA
Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Ronald J. Danison El Monte POA
The LDF is a tool available to me which I hope never goes away. It makes me feel that much more confident to do my job knowing LDF has my back when police work gets ugly. And it usually does..
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Gilbert Garcia Oceanside POA
My attorney provided outstanding representation.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Paul Barrolaza Twin Cities POA
- William DeWitt CPPA
Everything was awesome...could not be happier!
- German Alvarez Anaheim PA
[My representative ] was great!
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Raymond Fisher Colorado State Patrol Assn
I have known for sometime that PORAC would provide the services I needed at the time I needed them. This is a professional competent organization prepared to handle the appropriate legal matters our officers face in today's environment.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Ron Ruddy Riverside POA
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- Michael Sexton Manteca POA
[My representative] was awesome.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Michelle Foerder Pinole PEA
I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Brian Schopf Elk Grove POA
Keep up the good work.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- James Hika Border Patrol Supervisors Association
They did a great job!
- Carlos Gonzalez Oakland POA
Very well informed group.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Anthony Gregori Sonoma Co Jr College P O A
Excellent work and well worth it.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- William Jackson Santa Maria POA
Keep up the great work.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Emery Eccle Culver City POA
LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.