The Use of Compelled Statements in Subsequent Criminal Prosecutions

Posted on Saturday, June 01, 2019 at 12:00AM

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 [1990] 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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