Number range CHAPTER**EXCERPT FROM USA BOOK:**

Garrity statements

westlaw query GARRITY /P IMMUN!

During the prosecution of a law enforcement officer, substantial
evidentiary issues can be raised by the existence of a Garrity
statement. Typically, a Garrity statement is one made by an officer to
an internal affairs investigator under threat of being fired for
refusing to make the statement. See Garrity v. New Jersey, 385 U.S. 493,
497 (1967).

Garrity and its progeny establish three interrelated principles. Morgan
v. Tandy, 2000 WL 682659 \*4 (S.D. Ind.2000) (outlining Garrity
principles). First, if an officer answers questions under an explicit
threat that the officer will be fired if he or she invokes the privilege
against self-incrimination, the officer\'s answers cannot be used in a
subsequent criminal proceeding. Id. Second, unless the officer has been
given at least use immunity, the officer may not be fired for invoking
his or her Fifth Amendment privilege. Id. Third, if the officer has been
given at least use immunity, the officer may be fired if he or she
continues to refuse to answer questions that are specifically, directly,
and narrowly related to the officer\'s performance of official duties.
Id.; see United States v. Stein, 233 F.3d 6, 15 & n.4 (1st Cir. 2000)
(\"Where the government seeks to compel testimony by threat of loss of
livelihood, the witness may rightfully refuse to answer unless he is
protected against the use of the compelled answers in any subsequent
criminal case. A state may compel incriminating answers to its
questions, however, if the testimony and its fruits are rendered
unavailable for use in subsequent criminal proceedings.\"). See also
Gardner v. Broderick, 392 U .S. 273, 277-78 (1968) (holding employee may
not be fired solely for \"taking the Fifth\" in a grand jury proceeding
when not offered immunity); Uniformed Sanitation Men Ass\'n v. Comm\'r
of Sanitation of NewYork, 392 U.S. 280, 285 (1968) (employer may require
public employees to answer questions specifically, directly, and
narrowly relating to the performance of their official duties on pain of
dismissal if they do not require that the employee relinquish his or her
Fifth Amendment privilege).

Garrity proves problematic to prosecutors because \"use immunity\"
attaches to a Garrity statement. See United States v. Veal, 153 F.3d
1233, 1239-41 n.4 & 7 (11th Cir. 1998) (defining Garrity immunity as
self executing and holding Garrity-protected statement is tantamount to
use immunity); Wiley v. Mayor and City Council of Baltimore, 48 F.3d
773,777 n. 7 (4th Cir. 1995) (characterizing Garrity immunity as
\"self-executing\"); see also Baltimore City Dept. of Social Services v.
Bouknight, 493 U.S. 549, 562 (1990) (holding that, in \"broad range of
contexts, the Fifth Amendment limits prosecutors\' ability to use
testimony that has been compelled\" and citing Garrity). Accordingly,
neither the Garrity statement nor any leads derived from it can be used
directly or indirectly against the law enforcement officer in a
subsequent criminal proceeding. See Kastigar v. United States, 406 U.S.
441, 448-49 (1972) (general immunity).

At least one circuit has held that a prosecutor is prohibited from using
such testimony in focusing trial strategy and in otherwise exercising
prosecutorial discretion. United States v. McDaniel, 482 F.2d 305,
311-12 (8th Cir. 1973)(considering § 6002 immunity and holding that
immunized testimony, may not be used \"in focusing the investigation,
deciding to initiate prosecution, refusing to plea-bargain, interpreting
evidence, planning cross-examination, and otherwise generally planning
trial strategy.\"). As explained more fully in Section 7.57 of this
Chapter, other courts have disagreed.

Such use includes shaping the questioning of a prosecution witness. See
United States v. Schmidgall, 25 F.3d 1523,1528 (11th Cir. 1994). A
Garrity-protected statement may not be used for impeachment purposes.
See New Jersey v.Portash, 440 U.S. 450, 459-60 (1979) (immunized
testimony cannot constitutionally be used to impeach defendant in a
later criminal trial).

Because of this use immunity, Garrity statements may present thorny
legal issues, even when the statement, itself, has not been introduced
at trial or even seen by the prosecution team. This is true because an
internal investigator, or other person having access to the Garrity
statement, may reveal its contents to a federal investigator,
prosecution witness, or the media---sometimes without revealing its
source. When this happens, it is possible that the testimony of other
witnesses may become contaminated. See Schmidgall, 25 F.3d at 1528
(holding that \"protection against self-incrimination is violated
whenever the prosecution presents a witness whose testimony is
shaped---directly or indirectly---by immunized testimony, regardless of
how or by whom the witness was exposed to that testimony.\"); United
States v. North, 920 F.2d 940, 942(D.C. 1990) (\"witnesses\' exposure to
immunized testimony can taint their trial testimony irrespective of the
prosecution\'s role in the exposure . . . inquiry is therefore necessary
into whether the content of witnesses\' testimony was derived from or
motivated by the immunized testimony\").

7.55

What Garrity statements are protected?

The statements of public employees are protected by Garrity only when
the statements are given under circumstances requiring employees to make
a \"Hobson\'s choice\" between waiving their Fifth Amendment rights and
losing their jobs. See Garrity v. New Jersey, 385 U.S. 493, 497 (1967)
(holding that when choice given employees was to either forfeit their
jobs or incriminate themselves, the resulting statement was
involuntary); United States v. Vangates, 287 F.3d 1315, 1320 (11thCir.
2002) (\"a public employee may not be coerced into surrendering his
Fifth Amendment privilege by threat of being fired or subjected to other
sanction\"); Hill v. Johnson, 160 F.3d 469, 471 (8th Cir. 1998) (\"The
Fifth Amendment is violated only by the combined risks of both
compelling the employee to answer incriminating questions and compelling
the employee to waive immunity from the use of those answers\");
Harrison v. Wille, 132 F.3d 679, 682-83 (11th Cir. 1998) (\"when public
employees are given the choice of either forfeiting their jobs or
incriminating themselves, the Fifth Amendment has been violated\");
Singer v. Maine, 49 F.3d 837, 847 (1st Cir. 1995) (Garrity not
implicated because defendant was not \"put between the rock and the
whirlpool\" of incriminating himself or losing his job); Wiley v. Doory,
14 F.3d 993, 996 (4th Cir.1994) (holding Garrity limited to situation
where defendant must choose between job and self-incrimination); United
Statesv. Bowers, 739 F.2d 1050, 1056 (6th Cir. 1984) (holding Garrity
not implicated when employee not told he would lose job if he did not
submit to interview); United States v. Indorato, 628 F.2d 711, 716 (1st
Cir. 1980) (holding Garrity rights not implicated when there was no
explicit \"or else\" choice and there was no statute mandating that
employee be fired).

The threat of job loss, however, need not be explicit; indirect coercion
is also prohibited. See Vangates, 287 F.3d at1321. \"In the absence of a
direct threat\" of job loss, courts determine whether an officer\'s
statements were compelled by examining his or her \"belief and, more
importantly, the objective circumstances surrounding it.\" Id. at 1321-
22. A public employee\'s subjective fear that refusing to answer an
employer\'s questions will result in job loss, standing alone, is
insufficient to invoke Garrity protections; the belief must be
objectively reasonable. See id. at 1322 (holding that, for statements to
be protected under Garrity, the officer must have believed the
statements to be compelled on threat of loss of job and the belief must
have been objectively reasonable); United States v. Veal, 153 F.3d 1233,
1239 & n.4 (11th Cir. 1998) (holding Garrity protection applies when
accused \"reasonably believes\" that he or she will lose job if they
refuse to answer employer\'s questions); United States v. Friedrick, 842
F.2d 382, 395 (D.C. Cir. 1988) (holding that for statements to be
protected by Garrity, official must have believed his statements to be
compelled on threat of loss of job and his belief must have been
objectively reasonable); Indorato, 628 F.2d at 716; United States v.
Johnson, 131 F.3d 132, 1997 WL 792443 at \*2 (2dCir. 1997) (Unpublished;
table) (public official\'s alleged belief that he was required to
provide information or lose his job,based on his subjective
understanding of his employer\'s disciplinary rules, does not make
statement inadmissible under Garrity); United States v. Camacho, 739 F.
Supp. 1504, 1515 (S.D. Fla. 1990) (defendant must have subjectively
believed that he was compelled to give a statement upon threat of loss
of job and belief must have been objectively reasonable); see also In re
Federal Grand Jury Proceedings, 975 F.2d 1488, 1490 (11th Cir. 1992)
(citing Camacho test with approval). In fact, the First Circuit has held
that Garrity applies only if the person being investigated is explicitly
told that the failure to waive the constitutional right against self-
incrimination will result in discharge from public employment, and if
there is a statute or municipal ordinance mandating such procedure.
Stein, 233 F.3d at 16; Indorato, 233 F.3d at 716.

\"Not every consequence of invoking the Fifth Amendment is considered
sufficiently severe to amount to coercion to waive the right.\" Chan v.
Wodnicki, 123 F.3d 1005, 1009 (7th Cir. 1997) (collecting cases). Thus,
a law-enforcement agency\'s threat that an officer will be transferred
if he or she refuses to answer questions is probably not sufficient for
a statement to be considered \"compelled.\" See id. at 1009-10; cf.
Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir. 1993)(\"The injury
that results when a person is temporarily deprived of his right to wear
a uniform and a badge, to carry a gun, to arrest people, and to carry
out other functions of a police officer or other public officer\" is de
minimis and deprivation of right, with pay, does not constitute
cognizable Fourteenth Amendment constitutional claim).

Routine, contemporaneously prepared incident and/or arrest reports are
generally not considered compelled Garrity statements. See Devie v.
Goodstein, 680 F.2d 243, 247 (D.C. Cir. 1982) (holding public employee
could not have reasonably believed preparation of routine report would
be used in criminal prosecution); United States v. Ruiz, 579 F.2d670,
675-76 (1st Cir. 1978) (introduction of arrest report did not violate
privilege against self-incrimination); Watson v.County of Riverside, 976
F. Supp. 951, 954-55 (C.D. Cal. 1997) (distinguishing between material
generated as result of official questioning of an individual regarding
suspected prior misconduct and a public employee\'s job requirement of
completing a report); Camacho, 739 F. Supp. at 1520-21 (brief statements
made at scene not covered by Garrity); State of Texas v. Maitland, 993
S.W.2d 880, 882 (Tex. App. 1999) (holding Garrity not implicated because
purpose of accident report form was not to secure incriminating evidence
but to determine the facts of the accident).

A statement that would otherwise fall under Garrity may be exempt if the
defendant has waived his or her Garrity privilege contemporaneously or
by a subsequent waiver of the Fifth Amendment privilege, such as might
occur if a witness testified fully about the matter in a civil trial or
deposition. See Pillsbury Company v. Conboy, 459 U.S. 248, 263
(1983)(holding deponent\'s civil deposition testimony, closely tracking
his prior immunized testimony, is not, without duly authorized assurance
of immunity at the time, immunized testimony); Vangates, 287 F.3d at
1322-23 (finding statements made at civil trial were not protected by
Garrity when there was no evidence indicating officer had objectively
reasonable belief that adverse employment consequences would attach to
testifying); United States v. Anderson, 79 F.3d 1522, 1527-30 (9th
Cir.1996) (discussing impact of written waiver on statutory immunity);
United States v. Hartmann, 958 F.2d 774, 791 (7th Cir.1992) (holding
defendant waived any right to promised immunity when he stopped
cooperating); United States v. Roberson,872 F.2d 597, 610 (5th Cir.
1989) (holding right to immunity waived on appeal if not asserted in
district court).

Furthermore, the government can argue that statements made by a subject
at a reinstatement hearing---or similar administrative procedure---are
not protected by Garrity, provided that the subject was allowed to
\"take the Fifth\" at the hearing. The Fifth Amendment speaks only of
\"compulsion.\" See Minnesota v. Murphy, 465 U.S. 420, 427 (1984);
United States v. Monia, 317 U.S. 424, 427 (1943). It \"does not preclude
a witness from testifying voluntarily in matters which may incriminate
him. If . . . . he desires the protection of the privilege, he must
claim it or he will not be considered to have been \'compelled\' within
the meaning of the Amendment.\" Murphy, 465 U.S. at 427; see also Garner
v. United States, 424 U.S.648, 654 (1976) (\"If a witness under
compulsion to testify makes disclosures instead of claiming the
privilege, the government has not \'compelled\' him to incriminate
himself.\"). Garrity is thus inapposite to situations in which a subject
risks incurring a penalty, including job loss, not for refusing to
testify, but based upon other evidence of misbehavior. See Baxter
v.Palmigiano, 425 U.S. 308 (1976) (noting that \"common thread\" running
through Garrity cases is that refusal to waive privilege, standing alone
without other evidence, resulted in job loss).

This is true, even if the subject is forced to make a difficult
strategic choice between invoking his or her Fifth Amendment right---and
allowing an unfavorable administrative record to stand---or waiving the
right in order to attempt to ameliorate the administrative record
through explanatory testimony. See Harrison v. Wille, 132 F.3d 679,
682-83 (11th Cir.1998) (refusing to apply Garrity to prohibit firing of
public employee who invoked the Fifth Amendment during administrative
proceedings; employee could not show that he was terminated solely for
the exercise of his Fifth Amendment right as his termination came after
a lengthy investigation in which other evidence incriminated him);
Hoover v. Knight, 678 F.2d 578,581-82 (5th Cir. 1982) (holding police
department\'s refusal to continue an appeal of an officer\'s dismissal
pending resolution of related criminal charges did not violate the
former officer\'s privilege against self-incrimination); Diebold v.
Civil Service Commission, 611 F.2d 697, 699-701 (8th Cir. 1979)
(characterizing dilemma forced upon public employee about whether to
testify at an administrative hearing as a constitutionally permissible
one).

This principle is supported by appellate court decisions reached in the
analogous context of parole/probation revocation hearings. When such a
revocation hearing is held before the pending criminal trial on related
charges, the parolee/probationer must choose between giving testimony
which may be used in the subsequent criminal trial and \"taking the
Fifth,\" which may increase the odds of having parole or probation
revoked. The courts have generally held that, when parole is revoked
based upon the evidence of record and not as a direct consequence of the
parolee/probationer invoking the right not to testify, the
parolee/probationer\'s constitutional rights are not implicated. Lynott
v. Story, 929 F.2d 228, 230-32 (6th Cir. 1991)(rejecting federal
parolee\'s argument that the failure to give him use immunity at a
parole hearing penalized him for invoking the Fifth Amendment); Ryan v.
Montana, 580 F.2d 988 (9th Cir. 1978) (rejecting argument that
probationer was denied due process by being forced to elect to remain
silent and risk probation revocation or to speak in his own defense and
risk incriminating himself on separate pending criminal charge); Flint
v. Mullen, 499 F.2d 100, 102-03 (1st Cir. 1974) (holding there was no
constitutional obligation to provide a prisoner with use immunity to
enable him to testify at a hearing to revoke his deferred adjudication
when the revocation hearing took place before the pending criminal
trial).

The Supreme Court discussed the necessity of invoking the privilege in a
case involving---not the possibility of job loss---but the equally
serious sanction of loss of a civil case and/or forfeiture of property.
See United States v. Kordel, 397U.S. 1 (1970). In Kordel, the federal
government brought parallel civil and criminal cases against a company
and its officers for introduction of misbranded drugs into interstate
commerce. Id. at 3-6. The company\'s vice president, who was represented
by counsel and aware of the potential consequences, answered civil
interrogatories without asserting his Fifth Amendment privilege. Id. at
9. The Supreme Court held that it did not violate the Fifth Amendment
for the government to use these answers in the subsequent criminal
trial. The Supreme Court cautioned that its holding might be different
if the government deceptively brought the civil case in order to obtain
evidence in the criminal count. Id. at 11-12. The Court rejected the
appellate court\'s position that the corporation and its officers were
placed in the trilemma of refusing to answer the interrogatories,
thereby risking forfeiture; giving false answers, thereby risking
perjury; or giving true answers, thereby incriminating themselves. Id.
at 7. Instead, the Court held that the vice-president could have invoked
his Fifth Amendment privilege in his civil discovery response. Id. at
7-8.

7.56

Garrity---federal prosecutor\'s role and

responsibility

A defendant\'s rights under Garrity are protected, in part, by self-
policing by government prosecutors. This happens, in large measure, by
prosecutors having potential Garrity material reviewed and redacted by
persons who are not part of the prosecution team. See In re Grand Jury
Subpoenas (Stover), 40 F.3d 1096, 1103 (10th Cir. 1994); In re Grand
Jury Subpoena, 75 F.3d 446, 448 (9th Cir. 1996); United States v.
Mapelli, 971 F.2d 284, 288 (9th Cir. 1992) (noting government \"often
protects against a claim of indirect use by assigning the case to others
not exposed and barring communication between them and the prosecutors
who obtained the compelled testimony\"). \"Self policing by the
prosecution is frequent in criminal proceedings, such as in the
government\'s obligations to produce from its files evidence which is
exculpatory, is impeachment of a witness, or is a witness\' statement. .
. . there is a presumption that the government obeys the law.\" In re
Grand Jury Subpoena, 75 F.3d at 448.

7.57

Garrity and Kastigar hearings

westlaw query GARRITY /P KASTIGAR

Information contained in a protected Garrity statement may nonetheless
be introduced by the government at trial if it was obtained from a
\"wholly independent\" source. See United States v. Hubbell, 530 U.S.
27, 40 (2000) (statutory immunity); United States v. Cantu, 185 F.3d
298, 302 (5th Cir. 1999); United States v. Koon, 34 F.3d 1416,
1431-32(9th Cir. 1994), rev\'d in part on other grounds, 518 U.S. 81
(1996); see also In re Grand Jury Subpoena, 75 F.3d 446,448 (9th Cir.
1996) (discussing Kastigar hearing); United States v. Mapelli, 971 F.2d
284, 288 (9th Cir. 1992). The\"Kastigar hearing\" (or \"taint hearing\")
is the procedural mechanism for resolving any dispute about whether
evidence that the government has presented, or intends to present, came
from an independent source. See Kastigar v. United States, 406U.S. 441
(1972).

As a procedural matter, it is initially up to the defendant to establish
that a particular statement is protected by Garrity---or other grant of
immunity---and to move for exclusion of the material and/or other
relief. United States v. Mendoza, 78 F.3d 460, 464-65 (9th Cir. 1996)
(discussing informal grant of immunity and holding that to \"trigger the
shifting of the burden of proof to the government,\" the defendant must
show that the statement at issue was immunized); see also Pillsbury Co.
v. Conboy, 459 U.S. 248, 254-55 (1983) (holding burden shifts to
prosecutors once defendant has established he has testified under grant
of immunity); Kastigar, 406 U.S. at 460-62 (noting defendant need not
rely on good faith of prosecutors but may shift burden to prosecutor by
making requisite showing that immunized statement was made);United
States v. Roberson, 872 F.2d 597, 610 (5th Cir. 1989) (holding that
defendant must move to exclude allegedly immunize testimony or he or she
waives right to challenge use of evidence on appeal).

If the defendant makes the requisite showing that an immunized statement
was made, the burden shifts to the government to prove its evidence came
from a non-tainted source. Although the Kastigar court characterized
this burden as\"heavy,\" Kastigar, 406 U.S. at 461, most circuit courts
have held that this language requires only proof by a
\"preponderance\"of evidence. See, e.g., Cantu, 185 F.3d at 303; United
States v. Dudden, 65 F.3d 1461, 1468 (9th Cir. 1995); United States v.
Nanni, 59 F.3d 1425, 1431-32 (2d Cir. 1995); United States v.
Schmidgall, 25 F.3d 1523, 1528 (11th Cir.1994) (\"Although the
government\'s task has been characterized as a \'heavy burden,\' it is
clear that the government is required to prove an absence of taint only
by a preponderance of the evidence.\"); United States v. Bartel, 19 F.3d
1105, 1112 (6thCir. 1994); United States v. Harris, 973 F.2d 333, 336
(4th Cir. 1992) (holding courts have interpreted \"heavy
burden\"language as requiring proof by a preponderance of the evidence).
To meet its burden, the government need not negate all abstract
possibility of taint. United States v. Dynalectric Co., 859 F.2d 1559,
1578 (11th Cir. 1988). \"A district court\'s determination of whether
the government improperly has used privileged information in a criminal
prosecution is an issue of fact that will not be reversed unless the
district court\'s finding is clearly erroneous.\" United States v.
Schwimmer, 924 F.2d443, 446 (2d Cir. 1991); see also Harris, 973 F.2d at
337 (\"When the court uses correct legal principles, its taint
determination is a factual finding subject to review under the clearly
erroneous standard.\").

If Kastigar issues arise, a trial court has discretion to hold a hearing
to resolve the issues before trial, during trial, after trial, or in
some combination. See, e.g., United States v. Black, 776 F.2d 1321,
1325-26 (6th Cir. 1985); United States v. Tantalo, 680 F.2d 903, 909 (2d
Cir. 1982); United States v. De Diego, 511 F.2d 818, 824 (D.C. Cir.
1975). A court may also rule on the issues without a hearing, if the
record is sufficiently developed. United States v. Blau, 159 F.3d 68,
73(2d Cir. 1998) (holding it was not error to fail to hold hearing when
record was well developed); United States v. Montoya,45 F.3d 1286, 1298
(9th Cir. 1995) (holding government may meet its Kastigar burden of
proof through introduction of affidavits); cf. also Cantu, 185 F.3d at
304 (holding that the \"substantial burden of Kastigar does require the
government to give the defendant a chance to cross-examine relevant
witnesses, to ensure the lack of tainted evidence. Where, however, the
government offers such a witness at a hearing, and supplements that
witness\'s testimony with documentation, \[the court could\] not find a
violation of the defendant\'s Kastigar rights.\"). Strategically, it is
often to the government\'s advantage to argue that the hearing should be
postponed because, prior to trial, it is speculative whether the
government will actually \"use\" any of the evidence. See United States
v. Byrd, 765 F.2d 1524, 1531 (11th Cir. 1985) (\"The mere theoretical
possibility of an eventual Kastigar violation at trial is no grounds for
dismissing the indictment . . . .\[the defendant\'s\] testimony simply
has not been used against him, and it is premature to predict that it
will be.\").

As a general matter, a trial court\'s decision whether or not to hold a
Kastigar hearing and any ruling it makes pursuant to such a hearing, are
not subject to interlocutory appeal. In re Grand Jury Subpoena, 119 F.3d
750, 753-54 (9th Cir.1997). An exception exists when the defendant is
challenging the government\'s attempt to compel production of an
allegedly protected statement from a third party, who could not be
expected to risk being held in contempt in order to protect the
defendant\'s privilege. Id. at 753; see also In re Grand Jury Subpoenas
(Stover), 40 F.3d 1096, 1099 (10th Cir. 1994)(holding there was
jurisdiction for appellate court to hear Garrity issues before trial
when police chief informed officers that he intended to turn internal
affairs file over to the grand jury).

It is doubtless advantageous, as a practical matter, to ensure that the
prosecution team is not exposed to Garrity statements; this makes it
easier to show that there was no other \"use\" of the statements. Mere
exposure of a prosecutor to the statements, without more, however, is
probably not enough to overturn a conviction or require dismissal of an
indictment. The Fifth Circuit recently held that, although there might
be \"some cases in which the exposure of a prosecution team to a
defendant\'s immunized statement is so prejudicial that it requires
disqualification of the entire prosecution team\" such was not the case
when the defendant\'s trial strategy was one that \"a competent
prosecutor would need no special insight or information to discern.\"
United States v. Daniels, 281 F.3d 168, 182 (5th Cir. 2002); see also
United States v. Velasco, 953 F.2d1467, 1474 (7th Cir. 1992) (\"mere
tangential influence that privileged information may have on the
prosecutor\'s thought process in preparing for trial is not an
impermissible \'use\' of that information\"); United States v. Serrano,
870 F.2d 1, 17 (1stCir.1989) (rejecting argument that purpose of
immunity is \"automatically frustrated by the government\'s mere
exposure to immunized testimony\"); United States v. Mariani, 851 F.2d
595, 600 (2d Cir.1988) (rejecting argument that prosecution is
foreclosed because immunized testimony might have tangentially
influenced the prosecutor\'s thought processes in preparing the
indictment and preparing for trial\"); but see United States v. Semkiw,
712 F.2d 891, 895 (3d Cir. 1983) (remanding case because record did not
show that prosecutor had not used immunized testimony to shape trial
preparation and strategy);United States v. McDaniel, 482 F.2d 305, 312
(8th Cir. 1973) (requiring court to consider the immeasurable subjective
effect that reading immunized testimony had on the prosecutor\'s trial
preparation).

Note. The Eighth Circuit has subsequently characterized McDaniel as
limited to its \"unusual circumstances.\" United States v. McGuire, 45
F.3d 1177, 1183 (8th Cir. 1995).

As a related matter, if a trial court determines that a protected
Garrity statement has been improperly used to obtain an indictment or
conviction, the indictment need not be dismissed nor the conviction
overturned, if the government can prove, beyond a reasonable doubt, that
the error was harmless. United States v. France, 164 F.3d 203, 207-08
(4th Cir. 1998)(holding, pursuant to plain error review, that trial
court did not err in denying motion to dismiss indictment when
government\'s violation of Kastigar was \"harmless beyond a reasonable
doubt\"); United States v. Schmidgall, 25 F.3d 1523, 1529 (11thCir.
1994) (holding that even if immunized testimony was used, an indictment
or conviction may be upheld on finding that the use of such tainted
evidence was harmless beyond a reasonable doubt); United States v.
Turner, 936 F.2d 221, 225 (6thCir. 1991) (holding that if the government
failed to meet its burden of showing lack of taint but the district
court found that use of the tainted evidence was \"harmless beyond a
reasonable doubt,\" the defendant\'s conviction must stand); United
States v.Serrano, 870 F.2d 1, 16 (1st Cir. 1989) (same). For example,
there would be no meaningful taint if the defendant\'s protected
statement was exculpatory in nature or contained nothing of use to the
prosecution. See United States v. Gallo, 859 F.2d1078, 1082-83 (2d Cir.
1988).

7.58

Garrity---practical considerations

In most criminal proceedings, the circumstances for the granting of use
immunity are controlled by a prosecutor who has ample time to make a
thoughtful decision in the best interests of the case, and to take
appropriate precautions against improper use of an immunized statement.
See, e.g., Kastigar v. United States, 406 U.S. 441 (1972); 18 U.S.C.
6001 et seq. (setting out the process for granting use immunity). By
contrast, the circumstances surrounding the creation of a Garrity
statement can present problems for the criminal civil rights prosecutor
in several significant ways. For instance, in an attempt to foil the
criminal prosecution, the officer---often supported by an internal
affairs department hostile to the criminal prosecution---may make a
disingenuous claim that the statement was compelled. Second, the
internal affairs department may reveal the contents of the statement to
witnesses, possible cooperating subjects, or the media even before the
prosecutor opens the file. It is therefore incumbent upon prosecutors to
determine as early as possible whether a potential defendant had made a
Garrity statement. Once it has been determined that the officer, or
other public official, made a statement under circumstances equivalent
to legal compulsion, prosecutors must take care to treat these
statements as ones to which \"use immunity\" attaches.

To that end, prosecutors should, early in a case, take steps to ensure
that potential sources of Garrity material are located and identified.
They should set up screening procedures which allow them to document who
has had contact with potential Garrity material. Courts have relied upon
the existence of such regular procedures in crediting the government\'s
contention that no meaningful taint occurred. See United States v.
Harris, 973 F.2d 333, 336 (4th Cir. 1992) (quoting United States v.
Hampton, 775 F.2d 1479, 1490 (11th Cir. 1985) (finding government may
meet its Kastigar burden by\"showing that prosecuting officials and
their agents were aware of the immunity problem and followed reliable
procedures for segregating the immunized testimony and its fruits from
officials pursuing any subsequent investigations.\"). The Criminal
Section is available to consult with United States Attorney\'s Offices
on the manner and means of implementing such procedures.

For particularly thorny Garrity issues, consideration should be given to
using a \"dirty team\" of prosecutors to screen the evidence and present
arguments at any necessary hearings. On occasion, it may be in the
prosecution\'s best interest to make a pretrial motion requesting the
court to determine that a particular statement is not protected by
Garrity. See United States v. Vangates, 287 F.3d 1315, 1318 (11th Cir.
2002) (explaining, in discussing procedural history, that government had
made motion in limine to be allowed to use certain statements). Such a
motion should be handled by the \"dirty team,\"thereby ensuring that the
\"clean team\" is exposed to only those statements which the court has
ruled are non- Garrity.

Note. For further guidance on immunity issues and Department procedures,
see Chapter 8 of Federal Grand Jury Practice (Office of Legal Education
2000).