Can a Tennessee officer who got a Garrity advisory still be subpoenaed to testify against another officer in a criminal trial?

Subject

Opinion No. 12-81, Use of Government Employee's Garrity Statement in Criminal Prosecution of Another, August 15, 2012

Plain-English summary

Shelby County District Attorney General Amy Weirich asked the AG to interpret a Garrity advisory form the Memphis Police Department gives officers during internal investigations. The form has three relevant sentences:

Based upon the current state of criminal law and procedure, as outlined in Garrity v. State of New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967), and subsequent decisions, statements made during the course of an interview, such as you are currently engaged in, are considered to be given under duress. These statements have been ruled inadmissible in state and federal criminal prosecutions. This department will not attempt to use these statements against you in any criminal prosecution that could result from this investigation.

DA Weirich asked: can an officer who received that advisory be called as a state's witness to testify, in a criminal case against another government employee, about information the witness gave in a Garrity-protected interview?

The AG said yes. The reasoning:

• Garrity protects the speaker, not third parties. Garrity v. New Jersey held that when a government employer threatens to fire an employee unless the employee answers, the resulting statement cannot be used against the employee in a criminal case. The immunity is rooted in the Fifth Amendment's privilege against self-incrimination, which is a personal right. It does not extend to a different employee facing different criminal charges.
• Garrity immunity is self-executing. It "arises from the threat of an adverse employment action for refusal to answer questions rather than from an affirmative tender of immunity" (Sher v. United States Dept. of Veterans Affairs). Police departments cannot grant binding immunity in any event; that power rests with prosecutors (State v. Spradlin).
• The form's wording doesn't bar third-party use. Even if a Garrity advisory could create a contractual immunity, immunity agreements are read using ordinary contract principles (State v. Howington). The second sentence ("These statements have been ruled inadmissible") describes the law. The third sentence ("This department will not attempt to use these statements against you") is the only language that approaches a promise, and it is limited to the speaker, not other defendants.
• The defendant in another's trial is not a third-party beneficiary. Under Owner-Operator Indep. Drivers Ass'n v. Concord EFS, a third-party beneficiary claim requires that the third-party benefit be intended, not merely incidental. Nothing in the form suggests an intent to confer immunity benefits on other employees who might later be prosecuted using the witness's information.

So the prosecutor can subpoena and call the officer to testify in the criminal case against another government employee about what the witness had said in the Garrity-protected interview.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

What Garrity established

In Garrity v. New Jersey, 385 U.S. 493 (1967), the U.S. Supreme Court dealt with police officers who, during a New Jersey AG investigation into ticket-fixing, were told they would be fired if they refused to answer questions. They answered, and the answers were used against them at their criminal trials. The Court held this unconstitutional: "[t]he option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent." Compelled statements taken under threat of job loss cannot be used against the speaker in a subsequent criminal proceeding.

Gardner v. Broderick, 392 U.S. 273 (1968), clarified the complementary point: an employee who refuses to answer questions "specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity," can be fired. The compromise is that the employer can compel an answer or compel a job exit, but if it compels an answer, the answer cannot be used to prosecute.

Scope of Garrity immunity

Garrity immunity covers both the compelled statement itself and "fruits" of it derived directly or indirectly (Kastigar v. United States). It is self-executing: no agreement or affirmative grant is required. The employee gets it automatically whenever the threat-of-adverse-employment-action criterion is met (Sher v. United States Dept. of Veterans Affairs).

But the immunity is personal. The Fifth Amendment privilege against self-incrimination, the constitutional basis for Garrity, protects against the witness's own statements being used against the witness, not against the witness being subpoenaed to testify about someone else. A witness with Garrity immunity who is called to testify in another person's criminal trial can be required to do so, just like any other witness.

Why police departments can't grant broader immunity

Tennessee's State v. Spradlin makes the point that police departments are not the entities with authority to grant binding immunity. That power lies with prosecutors (or, in formal contexts, statutory transactional or use immunity granted by a court on motion). So a Garrity advisory issued by an internal-affairs investigator is not a contract granting immunity beyond what Garrity itself already requires. It is more accurately read as a notice that the constitutional immunity applies, plus a departmental promise not to attempt to use the statement against the speaker.

Contract analysis of the form's three sentences

The AG analyzed the Memphis Police Department form using ordinary contract construction principles:

• Sentence one ("statements ... are considered to be given under duress") simply restates the doctrinal premise of Garrity.
• Sentence two ("These statements have been ruled inadmissible in state and federal criminal prosecutions") describes the consequence of Garrity in cases against the speaker. It is not a promise that the statements are inadmissible in everyone's trials.
• Sentence three ("This department will not attempt to use these statements against you in any criminal prosecution that could result from this investigation") is the only sentence that reads like a forward commitment, and it is limited by the word "you." It says nothing about the department or any prosecutor using the statements against another employee.

Third-party beneficiary doctrine

A criminal defendant in another's trial cannot claim third-party-beneficiary rights to the Garrity form's promises. Tennessee follows the rule that a third-party benefit must be intended, not merely incidental (Owner-Operator Indep. Drivers Ass'n v. Concord EFS, 59 S.W.3d 63 (Tenn. 2001)). The form is for the benefit of the officer being interviewed. Other employees who might later be prosecuted are not the form's intended beneficiaries.

Common questions

Does this mean Garrity offers no protection in the multi-defendant context?
Garrity still protects each individual officer against use of his or her own compelled statement in his or her own criminal case. What it doesn't do is shield the officer's statement from being used as testimony against someone else.

Can the officer being prosecuted argue that the witness's testimony is "fruit" of his own compelled statement?
Possibly, if there is a real Kastigar-style argument that the prosecution's case was derived from the defendant's own Garrity-protected statements. That is a separate analysis from the question the AG addressed here, which is about the witness's status, not the defendant's.

Is there any way a Garrity advisory could bar a witness from testifying against another defendant?
In principle a department could draft an advisory that promises broader confidentiality, but the AG points out that any such promise would face two problems: (1) the department isn't the entity with authority to grant binding immunity (Spradlin), and (2) the prosecution could still subpoena the witness and the contract would not override a valid subpoena. The cleaner mechanism is formal use immunity granted by a court.

What does the witness do when subpoenaed despite the Garrity advisory?
Comply with the subpoena. The constitutional protection runs against use of the witness's own compelled statements in the witness's own criminal case. It does not provide a basis to refuse to testify against another defendant. A witness facing a complicated set of overlapping obligations should consult counsel before testifying.

Citations

Constitution:

• U.S. Const. amend. V

Cases:

• Garrity v. New Jersey, 385 U.S. 493 (1967)
• Gardner v. Broderick, 392 U.S. 273 (1968)
• Kastigar v. United States, 406 U.S. 441 (1972)
• Sher v. United States Dept. of Veterans Affairs, 488 F.3d 489 (1st Cir. 2007)
• State v. Spradlin, 12 S.W.3d 432 (Tenn. 2000)
• State v. Howington, 907 S.W.2d 403 (Tenn. 1995)
• Owner-Operator Indep. Drivers Ass'n, Inc. v. Concord EFS, Inc., 59 S.W.3d 63 (Tenn. 2001)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-081.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

August 15, 2012

Opinion No. 12-81

Use of Government Employee's Garrity Statement in Criminal Prosecution of Another

QUESTION

Can a government employee who has been given a Garrity advisory form that includes the sentence, "These statements have been ruled inadmissible in state and federal criminal prosecutions," be called as a State's witness to testify concerning information in the employee's Garrity statement in a criminal prosecution against another government employee?

OPINION

Yes. The sentence in question does not prevent an employee who receives the advisory from being called to testify at the criminal trial of another.

ANALYSIS

The "Garrity statement" referenced in this opinion request relates to the principles enunciated by the United States Supreme Court in Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the Supreme Court considered the issue whether the government "can use the threat of discharge to secure incriminatory evidence against an employee." Id. at 499. The Garrity case arose from an investigation conducted by the New Jersey Attorney General into the alleged fixing of traffic tickets by police officers. Id. at 494. During the course of the investigation, the appellant police officers were told that if they did not answer questions regarding this matter then they would be subject to removal from office. Id. The police officers proceeded to answer the questions posed, and their statements were used in a subsequent prosecution against them. Id. at 495.

Upon consideration of these facts, the Court concluded that "[t]he option to lose their [the police officers'] means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent." Id. at 497. Accordingly the Court found the use of these statements in subsequent criminal proceedings against these police officers unconstitutional under the Fifth Amendment of the United States Constitution, which prohibits compulsory self-incrimination. Id. at 500. Thus, under Garrity, a government employee who has been threatened with an adverse employment action by his or her employer for failure to answer questions posed by the employer receives immunity from the use of that statement in subsequent criminal proceedings. Id. at 500. See also Gardner v. Broderick, 392 U.S. 273, 278 (1968) (holding that the privilege against self-incrimination does not bar dismissal of an employee who refuses to answer questions "specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself"); Sher v. United States Dept. of Veterans Affairs, 488 F.3d 489, 500-01 (1st Cir. 2007). This "Garrity immunity" protects the employee from the use of the compelled testimony, as well as evidence derived directly and indirectly therefrom. See Kastigar v. United States, 406 U.S. 441, 453 (1972). Garrity immunity is self-executing; it arises from the threat of an adverse employment action for refusal to answer questions rather than from an affirmative tender of immunity. Sher, 488 F.3d at 501-02.

This opinion concerns a Garrity advisory form used by the City of Memphis Police Department, which is provided to police department employees during investigations conducted by the department. This form provides in pertinent part:

Based upon the current state of criminal law and procedure, as outlined in Garrity v. State of New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967), and subsequent decisions, statements made during the course of an interview, such as you are currently engaged in, are considered to be given under duress. These statements have been ruled inadmissible in state and federal criminal prosecutions. This department will not attempt to use these statements against you in any criminal prosecution that could result from this investigation.

The second sentence of this passage does not prevent an employee who receives the advisory from being called to testify at the criminal trial of another. Garrity immunity stems from the Fifth Amendment privilege against self-incrimination; it protects the recipient from incriminating himself, not another employee. See Garrity, 385 U.S. at 497. Moreover, the immunity is self-executing, and police departments generally have no authority to enter into binding immunity agreements because that power rests with prosecutors. See State v. Spradlin, 12 S.W.3d 432, 436 (Tenn. 2000). Even if a Garrity advisory form could confer immunity, immunity agreements are construed according to ordinary contract principles. See State v. Howington, 907 S.W.2d 403, 408 (Tenn. 1995). Taken in context, the second sentence of the form characterizes the holding of Garrity and its progeny rather than promises any restriction on the use of the statements. Any "promise", which in reality serves to notify the employee of the existing immunity, comes in the third sentence, which specifies that the statements will not be used "against you." Accordingly, an employee could not rely on either the second or third sentence to avoid testifying at the criminal trial of another, nor could the defendant in such an action claim to be the intended third-party beneficiary of a covenant restricting the use of the statements. See Owner-Operator Indep. Drivers Ass'n, Inc. v. Concord EFS, Inc., 59 S.W.3d 63, 68-69 (Tenn. 2001) (setting forth third-party beneficiary doctrine which requires, among other things, that third-party benefit must be intended, not merely incidental).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:
The Honorable Amy P. Weirich
District Attorney General
201 Poplar Avenue, Third Floor
Memphis, TN 38103-1947