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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- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- 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.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- 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.
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Micheal Chad Heiser Santa Rosa POA
LDF is a valuable resource that no law enforcement officer should be without.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- 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.
- Gilbert Garcia Oceanside POA
My attorney provided outstanding representation.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- 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.
- 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.
- 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.
- 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.
- German Alvarez Anaheim PA
[My representative ] was great!
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- 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.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Ron Ruddy Riverside POA
- 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..
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- James Beckman Miracosta College POA
Excellent service everytime.
- 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!
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Paul Barrolaza Twin Cities POA
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- 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.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- 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].
- Aaron Delgado Monterey POA
My representative called me back promptly and kept me informed. I had the impression she cared and was there to help.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- 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.
- 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.
- Christopher Adams Modesto POA
Thank you for all your help!
- 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.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- 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!
- James Hika Border Patrol Supervisors Association
They did a great job!
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- 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.
- 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!
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- 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.
- James F. Beland Lake County SDA
- 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.
- 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.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- 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.
- 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.”
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- 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!
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- 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].
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- 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.
- 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!
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- 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.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.