Grand Juries And Garrity

Most cases under Garrity v. New Jersey arise in the course of a criminal prosecution, where the question is whether the statements of a public employee are immunized because the statements were compelled as a condition of employment. Occasionally, a court will consider a case – as put recently by a Maryland appeals court – “that sits at the juncture of the broad inquisitorial authority of the grand jury and the Fifth Amendment privilege of government employees against self-incrimination as expressed in Garrity.”

The Maryland case started with a grand jury subpoena issued to the Fire/Emergency Medical Services Department of Prince George’s County. The subpoena requested the Department produce “any and all documents related to an investigation into an assault that took place on December 8, 2015 at 5409 75th Avenue, Hyattsville, Prince George’s County, Maryland, during a fire at said location to include but not limited to videos, dispatch calls, witness and respondent statements and police reports.”

The County filed for a protective order asking the Court to quash the subpoena (1) because it contained employee personnel records; and (2) because the County claimed that the report contained a number of “Garrity-related statements.” At a hearing, the County explained that two career firefighters filed with the Department a statement of charges against two volunteers involved in the alleged assault at 75th Avenue. In response, Department Battalion Chief Ava C. Hagood conducted an investigation and issued a report based on emails, photographs, a video clip, and a number of witness interviews.

The County Attorney proffered that about a dozen of the witness statements – including a written statement from each of the firefighters involved in the altercation – were compelled under a Department policy that requires an employee to cooperate with internal investigations or lose his or her job. The County offered the investigation report for in camera review, but the Court declined. When the Court issued a protective order with respect to “the compelled statements of the respondent firefighters and the report proposed by the Fire Department’s investigation,” but denied the protective order “as to videos, dispatch calls, and witness statements,” the prosecutors appealed.

The prosecutors argued that the grand jury was entitled to subpoena the Department’s report and witness statements because the Fifth Amendment only prohibits the grand jury from directly and actively violating the constitutional rights of the target(s) of its investigation – leaving the grand jury free to consider evidence that is already tainted at the time of production. The Court agreed, finding that Garrity caselaw made it clear that “it is extortion of information from the accused himself that offends our sense of justice, and a claimant cannot sustain a Fifth Amendment claim based on a grand jury subpoena if the ingredient of personal compulsion against an accused is lacking.

“Here, the grand jury is not compelling the County to speak; nor is it compelling the County to restate or affirm the truth of the investigation report’s contents. Instead, the grand jury is merely requesting that the County produce documents that the County freely admits are in its possession. Consequently, the County’s act of producing those documents would be non-testimonial and, therefore, would not implicate the Fifth Amendment privilege.

“We determine that to protect the public’s interest in a grand jury with plenary inquisitorial powers without compromising an individual’s right to keep criminal proceedings free from coerced, self-incriminating statements and the fruits thereof, the grand jury should be permitted to move forward with its inquiry and if necessary, the target(s) of the investigation may challenge the admissibility of the coerced statements through a motion to suppress prior to trial. Again, the Fifth Amendment is in place to ensure that coerced testimony cannot lead to the infliction of criminal penalties on the witness, and the claimant may not assert the privilege until confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination. The Fifth Amendment analysis focuses on the use of statements.

“Here, the firefighters may move to suppress their statements prior to trial. We do not believe that a rule permitting a court to intervene and prevent a grand jury from considering such evidence would, in any significant way, further the interests that the Fifth Amendment privilege is meant to protect.”

In re: Misc. 4281, 2016 WL 7031019 (Md. Spec. App. 2016).