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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My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Scott Hamilton San Bernardino Co SEBA
Don't go to work without LDF!
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- 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.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- Douglas Mansker Bakersfield POA
(My attorney) is a very good attorney, despite his young age. He kept me well informed throughout my legal matter and returned phone calls in a prompt manner. I was very satisfied with his performance and would not hesitate to be represented by him again.
- 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!
- James Beckman Miracosta College POA
Excellent service everytime.
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Christopher Wells Hollister POA
My rep was great.
- 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..
- 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.
- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
- 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.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- Russell Wise Alameda POA
- 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.
- 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.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- Christopher Boyd Carlsbad POA
[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
- 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.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Greg Harman Kensington POA
[My representative] is the best!!
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- 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.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Steven Moorehouse Redding POA
Thank you for your help.
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Erick Gaunt Palos Verdes POA
- 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.
- Ken Burbank Shasta Co DSA
[ My representative ] was professional, articulate and prepared, but most importantly he understood the emotional impact the investigation was having on me as a person and peace officer. I highly recommend [my representative].
- 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.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- 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.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- 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.
- Michael Sexton Manteca POA
[My representative] was awesome.
- 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
- 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].
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- 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.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.