NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 

well as formal revision before publication in the New Hampshire Reports. 

Readers are requested to notify the Reporter, Supreme Court of New 

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 

editorial errors in order that corrections may be made before the opinion goes 

to press. Errors may be reported by E-mail at the following address: 

reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 

a.m. on the morning of their release. The direct address of the court's home 

page is: http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2017-0409

THE STATE OF NEW HAMPSHIRE

v.

DAVID BURRIS

Argued: January 25, 2018

Opinion Issued: June 5, 2018

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant 

attorney general, on the brief and orally), for the State.

Nolan │ Perroni, P.C., of North Chelmsford, Massachusetts (Peter J. 

Perroni on the brief and orally), for the defendant.

LYNN, C.J. The defendant, David Burris, has been indicted on three 

counts of felony reckless conduct. See RSA 631:3 (2016). The Superior Court 

(Delker, J.) denied the defendant’s motion to dismiss the charges but approved 

this interlocutory appeal from ruling. Sup. Ct. R. 8. Because we conclude that 

the defendant is not entitled to transactional immunity under Part I, Article 15 

of the New Hampshire Constitution, we affirm and remand.

The facts as presented in the interlocutory appeal statement are as 

follows. At the time of the events giving rise to the indictment, the defendant 

was employed as a probation and parole officer with the New Hampshire 
2

Department of Corrections (Department). The indictment alleges that on 

December 1, 2015, the defendant engaged in reckless conduct when, during a 

home visit to a probationer he was supervising, he discharged a firearm three 

times at a motor vehicle operated by the probationer.

The Department investigated the incident. According to the defendant, 

as part of that investigation he was ordered, on at least two occasions, “under 

threat of immediate termination to provide a written statement regarding the 

events [that later gave] rise to the indictment.” Before providing a written 

statement, and again prior to submitting to an interrogation by the director of 

the Department, the defendant made the following assertion:

I have been ordered by the NH Department of Corrections to 

participate in this interview/meeting and/or to provide this 

statement. I do so at this order as a condition of my employment. 

Failure for me to abide by this order would lead to immediate 

severe discipline in the form of automatic dismissal and/or job 

forfeiture. As such, I have no alternative but to abide by this 

order. It is my belief and understanding that the Chief and the 

Department requires [sic] my participation solely and exclusively 

for internal purposes and will not release it [sic] to any other 

agency. It is my further belief that any statements will not and 

cannot be used against me in any subsequent criminal 

proceedings. I authorize release of any statements to my attorney 

or designated union representative. I retain the right to amend or 

change this statement upon reflection to correct any unintended 

mistake without subjecting myself to a charge of untruthfulness. 

For any and all other purposes, I hereby reserve my constitutional 

right to remain silent under the Fifth and Fourteenth Amendments 

to the United States Constitution and Part 1, Article 15 of the New 

Hampshire Constitution and any other rights prescribed by law. I 

specifically rely on the [principles] and protections afforded to me 

by State v. Norwell [sic], 58 N.H. 314 (1878). Further, I rely upon 

the protection afforded me under the doctrines set forth in Garrity 

v. New Jersey, 385 U.S. 493 (1967); Spevack v. Klein, 385 U.S. 

[511] [1967]; State v. Litvin, 147 NH 606 (2002) and any other 

rights afforded under New Hampshire law and/or the New 

Hampshire Constitution, should this report/statement be used for 

any other purpose of whatsoever kind or description.

The defendant then provided a compelled statement regarding the events of 

December 1, 2015. The director subsequently issued an investigative report to 

the commissioner of the Department that quoted and directly relied upon both 

the defendant’s written statement and his interview.1

 

1 A copy of the defendant’s written statement was included in the report.
3

The State avers that the prosecuting entity in this case, the Strafford 

County Attorney’s Office, “was provided with a redacted version of the 

[investigative report] and other materials from [the] New Hampshire 

Department of Corrections, that did not reference or include [the defendant’s] 

statement or the fruits therefrom.” For purposes of this interlocutory appeal, 

the defendant accepts the State’s representations regarding the materials to 

which the Strafford County Attorney’s Office has had access. In October 2016, 

the defendant was indicted on three counts of felony reckless conduct.

The defendant moved to dismiss the indictment, arguing that he is 

entitled to transactional immunity under Part I, Article 15 of the New 

Hampshire Constitution. He asserted that the State Constitution provides

broader protection against self-incrimination than the Fifth Amendment to the 

United States Constitution and that, pursuant to State v. Nowell, 58 N.H. 314 

(1878), only transactional immunity is sufficient to protect the privilege against 

self-incrimination provided by the State Constitution. The trial court denied 

the defendant’s motion.

The question transferred for our review is: “Whether Article 15 of the New 

Hampshire Constitution, as construed by [this court] in State v. Nowell, 58 

N.H. 314 (1878), requires a public employee be given transactional immunity 

when he is compelled to furnish statements against himself by his public 

employer?” The protection afforded by Part I, Article 15 in this context is 

strictly a question of law, and thus our review of the trial court’s ruling is de

novo. State v. Roache, 148 N.H. 45, 46-47 (2002); see Petition of State of N.H. 

(State v. Johanson), 156 N.H. 148, 151 (2007).

Part I, Article 15 of the State Constitution provides in part that “[n]o 

subject shall be . . . compelled to accuse or furnish evidence against himself.” 

N.H. CONST. pt. I, art. 15. This privilege against self-incrimination permits an 

individual “to refuse to testify against himself at a criminal trial in which he is 

a defendant, [and] also privileges him not to answer official questions put to 

him in any other proceeding, civil or criminal, formal or informal, where the 

answers might incriminate him in future criminal proceedings.” Knowles v. 

Warden, N.H. State Prison, 140 N.H. 387, 391 (1995) (quotation omitted). The 

purpose of the right is to prevent the compulsion and subsequent use of the 

defendant’s testimony to establish his guilt in a criminal case. See State v. 

Marchand, 164 N.H. 26, 32 (2012).

The defendant argues that Part I, Article 15 “requires that a public 

employee be afforded transactional immunity to displace the right to be free 

from providing compelled statements against one’s self,” and that “[b]ecause 

full transactional immunity . . . is the price the State must pay for compelling 

his testimony, the indictment[s] must be dismissed.” The defendant further 

contends that the trial court erroneously determined that the holding in Nowell

is dicta. In addition, he asserts that even if we determine that transactional 
4

immunity is not necessary to displace his right to remain silent, he was entitled 

to rely upon this court’s longstanding precedent.

There are generally two types of immunity that prosecutorial authorities

offer in exchange for compelled testimony. “Transactional immunity,” the 

broadest form of immunity, affords “immunity from prosecution for offenses to 

which compelled testimony relates.” Kastigar v. United States, 406 U.S. 441, 

443 (1972). “Use and derivative use immunity” affords “immunity from the use 

of compelled testimony and evidence derived therefrom.” Id. Unlike 

transactional immunity, a grant of use and derivative use immunity does not 

prevent future prosecution. See id. at 452-53. Both types of immunity are

typically creatures of statute. See id. at 442-43 (constitutional challenge to a 

federal immunity statute conferring use and derivative use immunity); 

Counselman v. Hitchcock, 142 U.S. 547, 560 (1892) (constitutional challenge 

to a federal immunity statute conferring transactional immunity). But see

State v. Belanger, 210 P.3d 783, 787, 788 (N.M. 2009) (explaining that, in New 

Mexico, while transactional immunity is a “legislative prerogative because it 

amounts to a decision by the people to exclude an entire class of individuals 

from application of the state’s criminal laws,” use immunity, which “serves to 

establish an evidentiary safeguard to protect the right against selfincrimination,” is governed by court rule (quotation omitted)). The United 

States Supreme Court has held that, under the Federal Constitution, use and 

derivative use immunity is coextensive with the scope of the Fifth Amendment

privilege against compulsory self-incrimination, noting that transactional 

immunity “affords the witness considerably broader protection than does the 

Fifth Amendment privilege.” Kastigar, 406 U.S. at 453.

In New Hampshire, prosecutors are authorized, by statute, to grant use 

and derivative use immunity. See RSA 516:34 (2007); see also State v. Kivlin, 

145 N.H. 718, 721 (2001) (explaining that, pursuant to statute, “the State, with 

authorization from the attorney general or county attorney, may grant a 

witness use immunity and request the trial court to order the witness to 

testify”); State v. Roy, 140 N.H. 478, 480-81 (1995) (noting that the statute

“vests with the State the power to request that a witness, who has asserted his 

or her privilege against self[-]incrimination, be ordered to testify in exchange for 

a grant of use immunity where the testimony is necessary to the public 

interest” (emphasis and quotation omitted)).

Distinguished from immunity authorized by statute or court rule, the 

type of immunity at issue in this case is so-called “Garrity immunity,” which 

applies in the public employment context. See Garrity v. New Jersey, 385 U.S. 

493 (1967). Garrity immunity “is Supreme Court-created and self-executing; it 

arises by operation of law; no authority or statute needs to grant it.” United 

States v. Veal, 153 F.3d 1233, 1239 n.4 (11th Cir. 1998).
5

In Garrity, the Attorney General of New Jersey investigated the alleged 

fixing of traffic tickets. Garrity, 385 U.S. at 494. The police officers being 

investigated were told that if they did not answer questions, they would be 

subject to removal from office. Id. As the Court noted, “No immunity was

granted, as there [was] no immunity statute applicable” under the 

circumstances. Id. at 495. After the police officers answered the questions, 

some of their statements were used in a subsequent criminal proceeding 

against them. Id.

Agreeing with the police officers that their statements had been coerced, 

the Court stated that “[t]he choice given [to them] was either to forfeit their jobs 

or to incriminate themselves,” and that “[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.” Id. at 497. Analogizing this practice 

to the interrogation practices in Miranda v. Arizona, 384 U.S. 436, 464-65 

(1966), the Court reasoned that the statements provided by the police officers 

were “infected by the coercion inherent in this scheme of questioning” and 

could not be sustained as voluntary. Id. at 497-98 (footnote omitted). 

Accordingly, as a remedy, the Court held 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 this right “extends to all, whether they are 

policemen or other members of our body politic.” Id. at 500.

Following Garrity, the Court addressed the claims of a police officer who 

was dismissed because he refused to waive his privilege against selfincrimination. Gardner v. Broderick, 392 U.S. 273, 274 (1968). The police 

officer had been ordered to appear before a grand jury to answer questions

“concerning the performance of his official duties.” Id. Under threat of 

termination, he was asked to sign a “waiver of immunity.” Id. (quotation 

omitted). He was subsequently discharged solely for his refusal to sign the

waiver. Id. at 274-75.

The Court acknowledged that the privilege against self-incrimination 

“may be waived in appropriate circumstances if the waiver is knowingly and 

voluntarily made” and that “[a]nswers may be compelled regardless of the 

privilege if there is immunity from federal and state use of the compelled 

testimony or its fruits in connection with a criminal prosecution against the 

person testifying.” Id. at 276. However, the Court distinguished the case 

before it in which the police officer was discharged from office “not for failure to 

answer relevant questions about his official duties, but for refusal to waive a 

constitutional right,” thereby “relinquish[ing] the protections of the privilege 

against self-incrimination.” Id. at 278. Because “[h]e was dismissed solely for 

his refusal to waive the immunity to which he [was] entitled” under Garrity, the 

Court held that state law requiring his dismissal could not stand. Id. at 278-

79.
6

In a decision issued the same day as Gardner, the Court observed that,

although public employees are entitled “like all other persons” to the benefit of 

the privilege against self-incrimination, “being public employees,” they “subject 

themselves to dismissal if they refuse to account for their performance of their 

public trust, after proper proceedings, which do not involve an attempt to 

coerce them to relinquish their constitutional rights.” Sanitation Men v. 

Sanitation Comm’r, 392 U.S. 280, 284-85 (1968).2

The Court subsequently underscored that its decisions in Garrity, 

Gardner, and Sanitation Men “ultimately rest on a reconciliation of the wellrecognized policies behind the privilege of self-incrimination, and the need of 

the State . . . to obtain information to assure the effective functioning of 

government,” noting that “[i]mmunity is required if there is to be rational 

accommodation between the imperatives of the privilege and the legitimate 

demands of government to compel citizens to testify.” Lefkowitz v. Turley, 414 

U.S. 70, 81 (1973) (citation and quotation omitted). The Court reiterated that

[a]lthough due regard for the Fifth Amendment forbids the State to 

compel incriminating answers from its employees and contractors 

that may be used against them in criminal proceedings, the 

Constitution permits that very testimony to be compelled if neither 

it nor its fruits are available for such use. Furthermore, the 

accommodation between the interest of the State and the Fifth 

Amendment requires that the State have means at its disposal to 

secure testimony if immunity is supplied and testimony is still

refused. This is recognized by the power of the courts to compel 

testimony, after a grant of immunity, by use of civil contempt and 

coerced imprisonment. Also, given adequate immunity, the State 

may plainly insist that employees either answer questions under 

oath about the performance of their job or suffer the loss of 

employment.

Id. at 84 (citations omitted).

In its most recent decision on this topic, after citing Garrity and Gardner, 

the Court observed that “[o]nce proper use immunity is granted, the State may 

use its contempt powers to compel testimony concerning the conduct of public 

 

2 The Court of Appeals for the First Circuit has explained that, “together, Garrity and Gardner

stand for the proposition that a government employee who has been threatened with an adverse 

employment action by [the] employer for failure to answer questions put to [the employee] by [the] 

employer receives immunity from the use of [the employee’s] statements or their fruits in 

subsequent criminal proceedings, and, consequently, may be subject to such an adverse 

employment action for remaining silent.” Sher v. U.S. Dept. of Veterans Affairs, 488 F.3d 489, 

501 (1st Cir. 2007). “Under these circumstances, no specific grant of immunity is necessary: It is 

the very fact that the testimony was compelled which prevents its use in subsequent proceedings, 

not any affirmative tender of immunity.” Id. at 502 (quotation omitted).
7

office, without forfeiting the opportunity to prosecute the witness on the basis 

of evidence derived from other sources.” Lefkowitz v. Cunningham, 431 U.S. 

801, 809 (1977). The Court rejected the State’s contention that being “forced to 

choose between an accounting from or a prosecution of a [public] officer” was 

“an intolerable position.” Id. at 808-09. The Court noted that the claimed

“dilemma” was created by the State’s transactional immunity law and that 

“[t]he more limited use immunity required by the Fifth Amendment would 

permit the State to prosecute [the public official] for any crime of which he may 

be guilty in connection with his [public] office, provided only that his own 

compelled testimony [was] not used to convict him.” Id. at 809.

Although acknowledging the above “general principles regarding 

compelled statements by public employees,” the defendant asserts that, 

pursuant to this court’s 1878 decision in Nowell, and our “reaffirm[ance]” in 

Wyman v. DeGregory, 101 N.H. 171, 174 (1957), the only type of immunity that 

comports with the New Hampshire Constitution’s prohibition against selfincrimination is transactional immunity. (Capitalization and bolding omitted.) 

The trial court rejected this argument, concluding that the language in Nowell

relied upon by the defendant is non-binding dicta.

In Nowell, we were asked to determine whether a statute that provided

transactional immunity to any “clerk, servant, or agent of any person accused” 

of violating a law prohibiting the sale of intoxicating liquors who was called to 

testify “against his principal” was constitutional. Nowell, 58 N.H. at 315

(quotations omitted). We concluded that the statute was “consistent with” Part 

I, Article 15. Id. at 314-15. In the course of reaching our decision, we used 

language that suggested that a statute that conferred less than transactional 

immunity would be insufficient to satisfy the constitution. See id. at 315. The 

trial court here explained that this language did not constitute binding 

precedent because “the court [in Nowell] was only asked to pass upon the 

constitutionality of the statute at issue, which provided transactional 

immunity,” and “was not asked to decide whether something less than 

transactional immunity — such as use and derivative use immunity — would 

suffice for purposes of Part I, Article 15.” Thus, the trial court reasoned, 

“[a]lthough the [Nowell court] answered this question anyway, that answer is 

not controlling authority because it is judicial dictum — it is effectively an 

advisory opinion on the constitutionality of a differently worded statute.” 

Further, the trial court reasoned that our “ostensible reaffirmation of Nowell” in 

DeGregory “suffers from the same infirmity” because, in the latter case, we 

“again considered and upheld a transactional immunity statute.” See

DeGregory, 101 N.H. at 174 (explaining that “an immunity statute which 

protects a witness against criminal conviction in our state courts from 

disclosures which he may be compelled to make satisfies” the requirements of 

Part I, Article 15).
8

We agree with the trial court’s analysis and conclude that neither Nowell

nor DeGregory control the determination of whether the use and derivative use 

immunity remedy provided by Garrity and its progeny to a government 

employee for statements compelled by his public employer under threat of an 

adverse employment action satisfies the privilege against self-incrimination 

under the State Constitution. “Historically the privilege against compelled selfincrimination originated as a reaction to the practice in the early English 

courts of compelling a witness to be sworn and give testimony concerning his 

guilt.” State v. Cormier, 127 N.H. 253, 255 (1985) (quotation and brackets 

omitted). Therefore, we have recognized that under Part I, Article 15, “[b]y 

definition, self-incrimination contemplates the use of the defendant’s 

statements to aid in establishing the guilt of the defendant.” Marchand, 164 

N.H. at 32 (quotation and brackets omitted) (emphasis added).

The immunity provided in a Garrity context prohibits the use of the 

government employee’s “compelled answers and evidence derived therefrom in 

any subsequent criminal case in which he is a defendant.” Turley, 414 U.S. at 

78. Thus, when provided such immunity as a remedy for his compelled 

testimony, the defendant is “in substantially the same position” as if he had 

remained silent. Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 (1964). The 

defendant is not exposed to criminal liability based upon any statements 

provided to his employer and the State may not use the defendant’s compelled 

statements or any “fruits” thereof to “aid in establishing the guilt of the 

defendant” in a subsequent criminal proceeding. Marchand, 164 N.H. at 32

(quotation omitted); see Kastigar, 406 U.S. at 460 (explaining that 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”).

Given that we have recognized that it is the impermissible use of 

compelled testimony that the privilege against self-incrimination embodied in 

Part I, Article 15 protects, if the compelled testimony cannot be put to any use 

whatsoever by the State in a criminal prosecution against the defendant, his

privilege against self-incrimination is not infringed. See Murphy, 378 U.S. at 

79. The privilege against self-incrimination “has never been construed to mean 

that one who invokes it cannot subsequently be prosecuted”; rather, “[i]ts sole 

concern is to afford protection against being forced to give testimony leading to 

the infliction of penalties affixed to criminal acts.” Kastigar, 406 U.S. at 453

(quotations and ellipses omitted); cf. Marchand, 164 N.H. at 33 (holding that 

the privilege against self-incrimination under the State Constitution would not 

be violated by compelling a psychological examination of the defendant 

“because the proposed examination would not be used by the State to prove

. . . the guilt of the defendant”). Accordingly, we conclude that the use and 

derivative use immunity that applies by operation of law when a government 

employee is compelled to provide a statement in the Garrity context is sufficient 

to achieve a proper balance between the employee’s privilege against self-
9

incrimination under Part I, Article 15 and the State’s interest in enforcing its

criminal laws.

We have recognized that the privileges contained in Part I, Article 15 of 

the State Constitution and the Fifth Amendment to the Federal Constitution 

are “comparable in scope.” Knowles, 140 N.H. at 391; see Marchand, 164 N.H. 

at 31. Nonetheless, the defendant contends that Part I, Article 15 should be 

interpreted more broadly than the Fifth Amendment in this context, relying, in 

particular, upon the Massachusetts Supreme Judicial Court’s interpretation of 

a provision in the Massachusetts Constitution that is identical to Part I, Article 

15. See Carney v. City of Springfield, 532 N.E.2d 631 (Mass. 1988).

In Carney, the Supreme Judicial Court held that Part I, Article 12 of the 

Massachusetts Declaration of Rights “requires transactional immunity to

supplant the privilege against self-incrimination, even in the context of public 

employment.” Id. at 635-36 (footnote omitted). Despite acknowledging that it 

had “never before faced the question whether transactional immunity is needed 

to overcome a claim of testimonial privilege by a public employee,” the court 

provided no analysis to support its conclusion that transactional immunity is 

required in such circumstances; nor did it cite any historical evidence that 

such was the intent of the framers of the Massachusetts Constitution. See id. 

at 636. The court nonetheless “exercised its prerogative to interpret . . . the 

Massachusetts Constitution’s privilege against self incrimination . . . more 

broadly than its Federal counterpart.” Id. at 635. Thus, although we “give 

weight to” the Massachusetts court’s interpretation of language in its 

constitution that is identical to that found in our constitution, Roache, 148 

N.H. at 49, for the reasons just stated we find the Carney decision 

unpersuasive. We note that the defendant has not developed an argument that 

either the text or the history that led to the adoption of Part I, Article 15 of the 

State Constitution supports a construction of this provision that differs from 

the construction of the Federal Constitution in Kastigar. See generally State v. 

Bradberry, 129 N.H. 68, 82-83 (1986) (Souter, J., concurring specially).

Finally, the defendant argues that “there can be no adequate procedural 

protection against a prosecutor’s non-evidentiary use of compelled statements.” 

Given that there is no record in this case to support this contention, we decline 

to address it. Accordingly, we affirm the trial court’s denial of the defendant’s 

motion to dismiss the charges against him and remand for further proceedings 

consistent with this opinion.

Affirmed and remanded.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.