              REPORTED

IN THE COURT OF SPECIAL APPEALS

            OF MARYLAND

                No. 724

          September Term, 2016




            In re: Misc. 4281




Wright,
Arthur,
Leahy,

                  JJ.


          Opinion by Leahy, J.


Filed: December 2, 2016
       We are presented with an issue 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 v. New Jersey, 385 U.S. 493, 500

(1967).1 A grand jury sitting in Prince George’s County (the “County”) subpoenaed the

County government to produce records, including employee interviews, that the County’s

Fire/Emergency Medical Services Department (the “Department”) collected during an

investigation into certain, potentially criminal, acts of its employees. The County moved

to quash the subpoena on the ground that producing those records would violate the

employees’ Fifth Amendment rights because employees implicated in the investigation

made statements to investigators that were coerced under a Department policy that requires

employees to cooperate with internal investigations under threat of losing their jobs.

       After a hearing, the Circuit Court for Prince George’s County issued an order

denying the County’s motion to protect the videos, dispatch calls, and witness statements,

and granting the County’s motion to protect the firefighters’ coerced statements and the

Department’s investigation report. The State appealed and presents the single question:

“Did the circuit court erroneously quash that part of the grand jury subpoena seeking the

involved firefighters’ statements and the County Fire Department’s investigatory report?”

       On October 21, 2016, the State filed a motion for expedited decision, alerting this

Court that the statute of limitations on any possible indictment for assault would run


       1
         In Garrity, the Supreme Court held that the Fifth Amendment privilege against
self-incrimination protects all government employees from the government’s use in
subsequent “criminal proceedings” of any statements coerced from them “under threat of
removal from office.” 385 U.S. at 500.
                                             1
December 8, 2016. After hearing the appeal on November 7, 2016, this Court issued a per

curiam order on November 23, 2016, reversing that part of the circuit court’s April 12,

2016 order that granted the County’s motion for protective order. This opinion explains

that order.

       We hold that the Fifth Amendment privilege against self-incrimination does not

prohibit a grand jury from compelling the production of a public agency’s internal

investigative reports containing coerced self-incriminating statements of its employees.

The employees may, however, move to suppress the evidence and its fruits if the

government seeks to use them against the employees in a criminal proceeding.

                                     BACKGROUND

       At the outset, we caution that by virtue of the secrecy historically afforded to grand

jury investigations, the facts that form the crux of this grand jury’s inquiry are largely

unknown to this Court and are under seal. Our factual recitation is based exclusively on

the publicly available transcript of the suppression hearing.2

       On behalf of the State of Maryland, the grand jury in Prince George’s County served

a subpoena duces tecum on the Office of the County Attorney, as counsel for the

Department. 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


       2
         After filing its notice of appeal, the State moved the circuit court to unseal the
transcript from the April 11, 2016 hearing at which the court considered the County's
motion to quash the subpoena. The County consented to the State’s motion, and the court
ordered the transcript unsealed on May 31, 2016.
                                             2
include but not limited to videos, dispatch calls, witness and respondent statements and

police reports.” The County filed for a protective order in the Circuit Court for Prince

George’s County 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 the hearing on April 11, 2016, 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.

       After taking the parties’ arguments under advisement, the circuit 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 State noted its timely

appeal to this Court.3


       3
         Although not challenged by the County, we note that the State’s appeal from the
circuit court’s order is properly before this Court. See State v. Rice, 447 Md. 594, 617-23
(2016). The general right of appeal from a final judgment entered in a civil or criminal
case by a circuit court is found in Maryland Code (1973, 2013 Repl. Vol.), Courts and
                                             3
                                       DISCUSSION

       We distill from the State’s contentions of error three distinct challenges to the

court’s order. First, the State presents the unpreserved argument that, because the Fifth

Amendment is a personal right, the Department lacked standing to assert the privilege on

behalf of individual firefighters. Second, the State’s central argument is that the Fifth

Amendment is not implicated when a grand jury subpoenas and reviews documentary

evidence containing potentially incriminating statements, even when the government has

“coerced” the statements from its employees.4 And third, the State argues that, should we



Judicial Proceedings Article (“CJP”), § 12–301. The exceptions and limitations to this
general right to appeal are contained in CJP § 12–302, which in turn limits the State’s right
to appeal in a “criminal case” to a few enumerated circumstances. CJP § 12–302(c). In
Rice, the Court of Appeals explained that just because a motion, such as a motion to compel
testimony, is filed in association with a criminal case, it does not follow that the proceeding
arising from the motion must be criminal in nature. Id. The Court explained that “an
appeal from an order issued by a court exercising criminal jurisdiction is not constrained
by CJP § 12–302(c) if the relief sought is collateral to the underlying criminal case against
the defendant.” Id. at 618 (quoting In re Special Investigation No. 231, 295 Md. 366, 370
(1983)). This Court, in In re Special Investigation No. 231, declared that in a grand jury
proceeding, the State may appeal from an order that “settles the rights of the parties or
concludes the cause.” 295 Md. 366, 370. As explained infra, we conclude in this case that
an investigation by a grand jury is not a “criminal case,” and the grand jury subpoena duces
tecum “bears none of the characteristics of a criminal case as that term is defined in the
Courts and Judicial Proceedings Article.” Rice, 447 Md. at 620. Consequently, the order
adjudicating the County’s motion for protective order is an appealable final judgment under
CJP § 12–301 and is not limited by CJP § 12–302(c).
       4
          Coercion in this context is determined by “whether the accused was deprived of
his free choice to admit, to deny, or to refuse to answer.” Garrity, 385 U.S. at 496 (citations
and quotations omitted). The firefighters in this case were allegedly presented with the
same ultimatum—to “either forfeit their jobs or to incriminate themselves”—as the police
officers in Garrity. Id. at 497. The Supreme Court in Garrity held 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” and, accordingly, constituted coercion within
the ambit of the Fifth Amendment right against compelled self-incrimination. Id.
                                              4
find for the County on the first two points, the proper disposition is to remand the case for

an evidentiary hearing in the circuit court to determine whether the Department actually

compelled the firefighters’ statements—an issue the circuit court accepted based only on

the County Attorney’s proffer.

                                              I.

       We first address the State’s contention that the County does not have standing to

assert a violation of the Fifth Amendment privilege against self-incrimination on behalf of

its employees. The State admits that it did not raise the standing issue below, but asks this

Court to consider it regardless of the fact that it was not preserved.

       In response, the County attempts to pivot away from the idea that it is protecting the

employees’ individual Fifth Amendment rights, by asserting that it has standing based on

the “right of a public employer to insist that its employees answer job-related questions.”

Dep’t of Pub. Safety & Corr. Servs. v. Shockley, 142 Md. App. 312, 324 (2002). The

County claims that the subpoena in question interferes with the County’s—and more

generally, the public’s—legitimate interest in public employees complying with job-related

questions. The County’s diversion to its own right to require employees to answer job-

related questions does not, however, remove the Fifth Amendment underpinning of its

challenge to the subpoena and the requirements for standing to assert a Fifth Amendment

claim on behalf of another. Nevertheless, we decline to address the standing issue because

it was not preserved5 and because it implicates a constitutional question that is not


       5
        See McGurk v. State, 201 Md. App. 23, 33 (2011) (citing Maryland Rule 8-131(a))
(holding that “by failing to raise the standing [to assert a Fourth Amendment] issue in the
                                              5
necessary to decide today.6 Curran v. Price, 334 Md. 149, 171 (1994) (“We have long

adhered to the policy of not deciding constitutional issues unnecessarily.”).

                                            II.

       The State asserts that the grand jury is entitled to subpoena the Department’s report


circuit court, the State waived the issue for appellate purposes” because an appellate court
will ordinarily only decide jurisdictional questions unpreserved at trial). The County here
muddles arguments that pertain to jurisdictional standing requirements with the
requirements for asserting the violation of a personal constitutional right. See Dorsey v.
Bethel A.M.E. Church, 375 Md. 59, 70 (2003) (citation omitted) (distinguishing issues
described as “standing” from jurisdictional standing—“such as whether the ‘case-or-
controversy requirement’ is met”). Addressing this same confusion in the federal context,
the Supreme Court in Rakas v. Illinois attempted to extricate the standing doctrine
nomenclature from the separate and distinct constitutional question of whether a party may
successfully exclude evidence based on a claimed violation of a personal right. 439 U.S.
128, 138-40 (1978). The Rakas Court concluded that the inquiry “is more properly placed
within the purview of substantive Fourth Amendment law than within that of standing.”
Id. at 140. The Court explained:

       Rigorous application of the principle that the rights secured by this
       Amendment are personal, in place of a notion of “standing,” will produce no
       additional situations in which evidence must be excluded. The inquiry under
       either approach is the same. But we think the better analysis forthrightly
       focuses on the extent of a particular defendant's rights under the Fourth
       Amendment, rather than on any theoretically separate, but invariably
       intertwined concept of standing.

Id. at 138-39 (footnote omitted). It is clear from McGurk and Rakas that the State’s
standing argument is non-jurisdictional and, therefore, we need not address it on appeal
when it was not preserved below.
       6
        There is robust jurisprudence holding that a private entity or its records custodian
may not assert a Fifth Amendment claim on behalf of individual employees whose
incriminating statements are contained within subpoenaed records. See, e.g., Fisher v.
United States, 425 U.S. 391 (1976); Couch v. United States, 409 U.S. 322, 323-24 (1973).
We recognize, however, that in those cases the element of government coercion was absent
because the individuals had given their statements freely to private employers. See, e.g.,
Couch, 409 U.S. at 329 (finding an entity had no Fifth Amendment claim because “the
ingredient of personal compulsion against an accused is lacking”).
                                             6
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. According to the State, this is because the grand jury’s historical role as an

investigator, rather than an adjudicator, requires that courts afford the grand jury broad

power to consider all available evidence regardless of that evidence’s competency or

admissibility at trial. The State adduces this argument from two progenies of Supreme

Court decisional law: one holding that the Fourth Amendment’s exclusionary rule is

inapplicable to grand jury proceedings; and one holding that a court should not dismiss an

indictment because the grand jury based its decision on tainted evidence, the admission of

which at trial would violate the Fifth Amendment.

       The County responds that the cases on which the State relies are inapposite. First,

the County distinguishes those cases upholding an indictment based on tainted evidence on

the ground that in each case, the court’s decision was ex post rather than ex ante actively

permitting a grand jury to bypass an individual’s constitutionally protected rights. Second,

the County argues that the State’s reliance on the Fourth Amendment exclusionary rule—

which weighs the harm of allowing in the evidence against the benefits of deterring similar

future police misconduct—is inapplicable because there is no state misconduct involved in

compelling work-related incident statements from public employees. The County urges

that rule articulated in Garrity v. New Jersey—that public employees’ compelled

statements may not be used in any criminal proceedings—applies to the grand jury

proceedings in this case. 385 U.S. 493. The County also directs us to a case from the

                                               7
United States Court of Appeals for the Fourth Circuit, In re Grand Jury, John Doe No. G.J.

2005-2, 478 F.3d 581, 588 (4th Cir. 2007) (“John Doe”), in which that court affirmed a

district court’s decision to quash a subpoena after considering, in similar circumstances,

the subpoena’s Fifth Amendment implications.

       Because the court’s order involves the interpretation and application of

constitutional and decisional law, we undertake a de novo review in determining whether

the trial court's conclusions were legally correct. In re Nick H., 224 Md. App. 668, 681

(2015).

                           A. The Fifth Amendment Privilege

       The Fifth Amendment to the United States Constitution, incorporated against the

states by the Fourteenth Amendment,7 provides that “[n]o person shall . . . be compelled in

any criminal case to be a witness against himself.” Similarly, Article 22 of the Maryland

Declaration of Rights provides that “no man ought to be compelled to give evidence against

himself in a criminal case.”8

       “It is important, in applying constitutional principles, to interpret them in light of

the fundamental interests of personal liberty they were meant to serve.” Couch, supra, 409


       Malloy v. Hogan, 378 U.S. 1, 6 (1964) (“Fifth Amendment’s exception from
       7

compulsory self-incrimination is also protected by the Fourteenth Amendment against
abridgment by the States.”).
       8
         Our judgment is based exclusively upon our interpretation of the protections
afforded under the Fifth Amendment and the constitutional principles and case law derived
therefrom. We note that no argument has been advanced that Article 22 of the Maryland
Declaration of Rights should be given a different interpretation than would be accorded the
Fifth Amendment in this context, nor do we perceive a different outcome in this case under
Article 22.
                                             8
U.S. at 336. The Fifth Amendment protects a claimant from “‘the cruel trilemma of self-

accusation, perjury or contempt[,]’” based, in part, on “‘our fear that self-incriminating

statements will be elicited by inhumane treatment and abuses.’” Id. at 328 (quoting

Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55 (1964)). The privilege

against self-incrimination does not, however, grant speakers a liberty interest in being free

from inquiry. Smith v. State, 394 Md. 184, 212 (citations omitted). “For the history of the

privilege establishes not only that it is not to be interpreted literally, but also that its sole

concern is, as its name indicates, with the danger to a witness forced to give testimony

leading to the infliction of penalties affixed to the criminal acts[.]” Ullmann v. United

States, 350 U.S. 422, 438-39 (1956) (footnote, citation, and internal quotations marks

omitted); see also Kastigar v. United States, 406 U.S. 441, 453 (1972) (explaining that the

purpose of offering derivative use immunity to witnesses testifying before a grand jury is

to ensure “that the testimony cannot lead to the infliction of criminal penalties on the

witness”). Further, the Supreme Court has directed that “[t]he central standard for the

privilege’s application has been whether the claimant is confronted by substantial and

‘real,’ and not merely trifling or imaginary, hazards of incrimination.” Marchetti v. United

States, 390 U.S. 39, 53 (1968).

       In determining whether the State has violated an individual’s privilege against self-

incrimination, we are mindful of the scope of the constitutional right as well as the rules

courts have created to help safeguard the right. Although the privilege against self-

incrimination is fundamentally a “trial right of criminal defendants[,]” United States v.

Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (emphasis added), the Supreme Court has

                                               9
found it “necessary to allow assertion of the privilege prior to the commencement of a

‘criminal case’ to safeguard the core Fifth Amendment trial right.” Chavez v. Martinez,

538 U.S. 760, 771 (2003); Kastigar v. United States, 406 U.S. 441, 444-45 (1972)

(reasoning that an individual may assert the privilege “in any proceeding, civil or criminal,

administrative or judicial, investigatory or adjudicatory; and it protects against any

disclosures which the witness reasonably believes could be used in a criminal prosecution

or could lead to other evidence that might be so used”). Prophylactic rules and grants of

immunity in non-criminal cases help further “preserve[] the core Fifth Amendment right

from invasion by the use of that compelled testimony in a subsequent criminal case[,]” but

“violations of judicially crafted prophylactic rules do not violate the constitutional rights

of any person.” Chavez, 538 U.S. at 771-72.

       In sum, the claimant must face a substantial, non-speculative risk of criminal

sanction resulting from the government’s use of the coerced statement in a criminal

proceeding. At the threshold of our analysis, then, we determine whether a grand jury

investigation is a “criminal case” or “criminal proceeding” within the meaning of the Fifth

Amendment.

                               1. No Criminal Proceeding

       The County relies principally on Garrity, supra, in leveling its challenge to the

grand jury subpoena’s request for records containing statements by public employees that

were coerced by the government. In Garrity the central issue was whether the State of

New Jersey violated the Fifth Amendment rights of certain police officers by coercing

statements from those officers during an internal affairs investigation and then using the

                                             10
statements against the officers in subsequent prosecutions. 385 U.S. at 494-95. The

Supreme Court held that the State had violated the officers’ Fifth Amendment rights

because the privilege against self-incrimination “prohibits use in subsequent criminal

proceedings of statements obtained under threat of removal from office.” Id. at 500. As

this Court summarized the Garrity rule: “‘The public employer has a choice between either

demanding a statement from an employee on job-related matters, in which case it can not

use the statements in a criminal prosecution, or prosecuting the employee, in which case it

cannot terminate the employee for refusing to give a statement.’” Shockley, supra, 142

Md. App. at 322 (alteration omitted) (quoting United States v. Camacho, 793 F. Supp.

1504, 1514-15 (S.D. Fla. 1990)). Under Garrity, there is no constitutional injury when the

government compels from its employees statements against the employees’ self-interest

unless and until the government uses those statements in a “criminal proceeding.” Id.

(citations omitted); see also Chavez, 538 U.S. at 769 (“Our holdings in these cases

demonstrate that . . . mere coercion does not violate the text of the Self-Incrimination

Clause absent use of the compelled witness statements in a criminal case against the

witness.”). The question then becomes whether or not a grand jury investigation is a

“criminal proceeding” within the meaning of Garrity. We begin by reviewing the grand

jury’s role and function in history.

            a. The Grand Jury’s Historical Role as an Investigative Body

       Nearly a century ago, the Supreme Court observed that the grand jury “is a grand

inquest, a body with powers of investigation and inquisition, the scope of whose inquiries

is not limited narrowly by questions of propriety or forecasts of the probable result of the

                                            11
investigation, or by doubts whether any particular individual will be found properly subject

to an accusation of crime.” Blair v. United States, 250 U.S. 273, 282 (1919) (emphasis

added). The Court of Appeals observed then that “[t]he institution known as the grand

inquest, or the grand jury, is of ancient origin[,]” dating back at least to the rule of Henry

III in the early Thirteenth Century. In re Report of Grand Jury Appeal of Perring, 152 Md.

616, 619 137 A. 370, 372 (1927) (“Perring”).9 The grand jury’s “historic office has been

to provide a shield against arbitrary or oppressive action, by insuring that serious criminal

accusations will be brought only upon the considered judgment of a representative body of

citizens acting under oath and under judicial instruction and guidance.” United States v.

Mandujano, 425 U.S. 564, 571 (1976). In this way the proceeding acts as a “buffer”

between the government and the citizenry. United States v. Williams, 504 U.S. 36, 47

(1992).

       Judge Digges, writing for the Court of Appeals in 1927 in Perring, expounded on

the long revered efficacy of the grand jury:

              At common law, just as no man may be convicted and punished of a
       felony without the unanimous verdict of twelve of his peers, constituting the
       9
         Some scholars have traced the origins of the grand jury back much further. See
Renee B. Lettow, Reviving Federal Grand Jury Presentments, 103 Yale L.J. 1333, 1335
n.8 (1994) (“Established by Henry II's Assize of Clarendon in 1166, the grand jury's
original function was to bring accusations before royal judges. At first all accusations
originated with the grand jury, but later the jurors considered accusations from outsiders
and passed upon indictments drawn up by crown prosecutors. The jurors, however,
retained the power to accuse on their own initiative.”); Michael F. Buchwald, Of the
People, By the People, For the People: The Role of Special Grand Juries in Investigating
Wrongdoing by Public Officials, 5 Geo. J. L. & Pub. Pol’y 79, 84 (2007) (“Like many
traditions in our legal system, the grand jury came to America from Britain. The English
grand jury is usually traced by historians back to the Assize of Clarendon issued by Henry
II in 1166 to replace alternative decisionmaking methods such as trial by battle.”).
                                               12
       petit jury, neither can he be put to his trial for any such offense except upon
       the presentment or indictment by at least twelve of his fellow citizens,
       constituting the grand jury. This is true in Maryland, in the federal courts,
       and in most of the states of the Union, . . . . So jealously have the people
       generally regarded this requirement as a safeguard to liberty that it is
       embodied in some form in most, if not all, of the Constitutions.


Perring, 152 Md. at 621, 137 A. at 372. In Maryland, that safeguard is found in Article 21

of Maryland’s Declaration of Rights.10

       To ensure that the grand jury may fully investigate potential wrongdoing, while

protecting the public from crime and the accused from unfounded prosecutions, courts have

traditionally accorded the grand jury “wide latitude to inquire into violations of criminal

law.” United States v. Calandra, 414 U.S. 338, 343 (1974). That is because “[a] grand

jury proceeding is not an adversary hearing in which the guilt or innocence of the accused

is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been

committed and whether criminal proceedings should be instituted against any person.” Id.

343-44; see also Bartram v. State, 280 Md. 616, 627 (1977) (citations omitted) (“‘The



       10
           Among the six rights contained in Article 21 protecting those accused of crimes,
the first is “[t]hat in all criminal prosecutions, every man hath a right to be informed of the
accusation against him; to have a copy of the Indictment, or charge, in due time to prepare
for his defense[.]” Article 21 does not require that the grand jury convene and render an
indictment in every case, for a defendant may waive the right to an indictment by a grand
jury. Dan Friedman, The Maryland State Constitution 50 (Oxford University Press 2d ed.
2011) (citations omitted). However, where there is an indictment, then the defendant is
entitled to a copy, and the indictment must “allege the essential elements of the offense
charged and ‘describe the particular offense with such reasonable certainty as to enable the
accused to prepare his defense[.]’” Id. (citations omitted). Unlike the right against self-
incrimination, the Fifth Amendment’s grand jury clause is not incorporated against the
states through the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516, 534
(1884); Gray v. State, 368 Md. 529, 549-50 (2002).
                                              13
grand jury is an accusing body, and not a judicial tribunal.’”)

       The grand jury’s authority “to require the production of evidence” is

“[i]ndispensable to the exercise of its power.” Mandujano, 425 U.S. at 571 (citations

omitted). As far back as 1891, the Court of Appeals emphasized the importance of this

function, reasoning that without the power of inquest, the grand jury would be limited “to

the investigation only of cases laid before them or falling under their own personal

knowledge or observation.” Blaney v. State, 74 Md. 153, 155, 21 A. 547, 547 (1891). The

Supreme Court of the United States more recently reiterated that the sources of evidence

into which the grand jury may inquire are “widely drawn, and the validity of an indictment

is not affected by the character of the evidence considered.” Calandra, 414 U.S. at 344-

45. Its “investigative power must be broad if its public responsibility is adequately to be

discharged.” Id. at 344 (citations omitted). For this reason, the Court of Appeals has

repeatedly described the grand jury’s inquisitorial powers as “plenary.” See, e.g., Lynkins

v. State, 288 Md. 71, 82 (1980); Perring, 152 Md. at 621, 137 A. at 327.

       Commensurate with the grand jury’s plenary inquisitional authority is the

“obligation of every person to appear and give his evidence before the grand jury.” United

States v. Dionisio, 410 U.S. 1, 10 (1973). Like the grand jury itself, this duty stems from

common law roots. The Supreme Court has remarked that it is unclear when grand juries

began compelling witnesses to testify, but the power seems to have existed by 1612 when

Lord Bacon declared: “‘All subjects, without distinction of degrees, owe to the King tribute

and service, not only of their deed and hand, but of their knowledge and discovery.’” Blair,

250 U.S. at 279-80 (citing Countess of Shrewsbury’s Case, 2 How. St. Tr. 769, 778 (K.B.

                                             14
1612)). “The personal sacrifice” of those subpoenaed by the grand jury “is part of the

necessary contribution of the individual to the welfare of the public.” Id. at 281.

                              b. Secrecy and Independence

       Recognizing the sensitive and fluid nature of a preliminary investigation, the Court

of Appeals has long mandated that grand jury proceedings remain secret. Elbin v. Wilson

33 Md. 135, 144 (1870); see also In re Criminal Investigation No. 437 in Circuit Court for

Baltimore City, 316 Md. 66, 76 (1989) (“Secrecy is the lifeblood of the grand jury.”).

Secrecy protects the grand jury’s freedom of inquiry as well as the privacy of the innocent

persons who bear witness before it. Coblentz v. State, 164 Md. 558, 566-67 (1933).

Maintaining secrecy is an “inflexible requirement,” id. 566-67, which ensures the grand

jury furthers public justice by remaining free from inducement and outside influence.

Jones v. State, 297 Md. 7, 23 (1983); see also Douglas Oil Co. v. Petrol Stops Nw., 441

U.S. 211, 218-19 (1979) (footnotes and citations omitted) (“We have consistently

recognized that the proper functioning of our grand jury system depends upon the secrecy

of grand jury proceedings.”). The secrecy rule, which, like the grand jury itself, is an

antecedent of the common law that simultaneously protects: the investigation’s integrity,

the grand jurors themselves, hesitant witnesses who would “be less likely to testify fully

and frankly,” Douglas Oil, 441 U.S. at 219, as well as “individuals whose conduct may be

investigated, but against whom no indictment may be found[.]” Coblentz, 164 Md. at 567.

       The grand jury does not sit within any of the branches of government, thereby

providing an additional check on its integrity and the freedom of individuals who find

themselves subject to an unfounded inquiry. Williams, 504 U.S. at 47. “In fact the whole

                                             15
theory of its function is that it belongs to no branch of the institutional Government, serving

as a kind of buffer or referee between the Government and the people.” Id. (citations

omitted).   That does not mean, however, that the grand jury is entirely free from

institutional review or that its subpoena power is unlimited. Calandra, 414 U.S. at 345-

46. The grand jury has an “arm’s length” relationship with the judiciary. Williams, 504

U.S. at 48. Although the grand jury “generally operates without the interference of a

presiding judge[,]” a court need not lend its assistance to a grand jury’s attempts to override

a witness’s testimonial privileges or constitutional rights. Id. “Even in this setting,

however . . . the grand jury remain[s] ‘free to pursue its investigations unhindered by

external influence or supervision so long as it does not trench upon the legitimate rights of

any witnesses called before it.’” Id. (quoting Dionisio, 410 U.S. at 17-18).

                 c. No Criminal Proceeding until the Grand Jury Acts

       As early as 1896, the Supreme Court determined that a grand jury is not a criminal

proceeding. In Post v. United States, a criminal defendant asked the Supreme Court to

demur his indictment based on a new, prospective state law that required the state to

institute “criminal proceedings” in the judicial district in which the alleged offense

occurred. 161 U.S. 583, 584-86 (1896). A federal district convened a grand jury before

the new law took effect, but the grand jury did not indict the defendant until after that date.

Id. The Court, therefore, had to determine whether a grand jury is a criminal proceeding.

Id. at 586-87. It ruled:

              Criminal proceedings cannot be said to be brought or instituted until
       a formal charge is openly made against the accused, either by indictment
       presented or information filed in court, or, at the least, by complaint before a

                                              16
       magistrate. The submission of a bill of indictment by the attorney for the
       government to the grand jury, and the examination of witnesses before them,
       are both in secret, and are no part of the criminal proceedings against the
       accused, but are merely to assist the grand jury in determining whether such
       proceedings shall be commenced. The grand jury may ignore the bill, and
       decline to find any indictment; and it cannot be known whether any
       proceedings will be instituted against the accused until an indictment against
       him is presented in open court.

Id. at 587 (emphasis added) (internal citations omitted); see also Virginia v. Paul, 148 U.S.

107, 119 (1893) (ruling that there was no criminal proceeding before the state returned an

indictment or initiated proceedings in the court). Similarly, the Court of Appeals has

declared that a criminal case does not begin until the grand jury acts. Reddick v. State, 219

Md. 95, 100 (1959) (rejecting appellant’s argument that the grand jury unreasonably

delayed presenting appellant’s indictment, the Court held that “[u]ntil the Grand Jury acted

there was no case to be tried.”).

       In fact, the grand jury’s entire function is determining “whether criminal

proceedings should be instituted against any person.” Calandra, 414 U.S. at 344 (emphasis

added). Logically, to brand a grand jury investigation a criminal proceeding would

diminish the fundamental precept of American criminal law that one is innocent until

proven guilty. Indeed, “the identity of the offender, and the precise nature of the offense,

if there be one, normally are developed at the conclusion of the grand jury’s labors, not at

the beginning[,]” Blair 250 U.S. at 282 (citing Hendricks v. United States, 223 U.S. 178,

184 (1912)), and a grand jury investigation may never actually result in a criminal

proceeding. Cf. Chavez, supra, 538 U.S. at 766 (stating that it “need not decide today the

precise moment when a ‘criminal case’ commences[,]” but reasoning that “[i]n our view,


                                             17
a ‘criminal case at the very least requires the initiation of legal proceedings”). The

overwhelming number of courts to address this issue reached the same conclusion we do

here: a grand jury is an investigative and inquisitorial proceeding, not a criminal

proceeding.11

                                d. A Body of Laypersons

       Our conclusion that a grand jury is not a criminal proceeding is consistent with the

grand jury’s historical structure. We hesitate to create rules that would exclude evidence

from a grand jury’s consideration because, “in this Country as in England of old[,] the

grand jury has convened as a body of laymen, free from technical rules[.]” Costello v.



       11
           See, e.g., In re Grand Jury Subpoena, 138 F.3d 442, 444 n.2 (1st Cir. 1998)
(motion to quash grand jury subpoena of attorney’s depositions and exhibits investigating
alleged police misconduct “does not implicate any Fifth Amendment issues”); In re Taylor,
567 F.2d 1183, 1186 (2d Cir. 1977) (“grand jury investigations are not criminal
proceedings”); In re Special Sept. 1978 Grand Jury (II), 640 F.2d 49, 64 (7th Cir. 1980)
(“It is not disputed that these documents were subpoenaed for the continuing Grand Jury
investigation and not for the criminal proceedings resulting from the indictments already
returned”); Nixon v. Sirica, 487 F.2d 700, 749 (D.C. Cir. 1973) (a grand jury proceeding is
“not a criminal trial of an accused”); In re Lemon, 59 P.2d 213, 214 (Cal. Dist. Ct. App.
1936) (“a grand jury investigation is in no proper sense a criminal proceeding”); In re Feb.
1970 Cook Cnty. Special Grand Jury, 263 N.E.2d 832, 833 (Ill. 1970) (a criminal
proceeding does not commence until the grand jury returns an indictment); Fletcher v.
Graham, 192 S.W.3d 350, 402 (Ky. 2006) (“the grand jury does not conduct criminal
proceedings; it initiates criminal proceedings by the return of an indictment”); Ims v. Town
of Portsmouth, 32 A.3d 914, 923 (R.I. 2011) (a grand jury proceeding is an inquiry, not a
criminal trial). See also In re Grand Jury Subpoenas (Albuquerque Police Dep’t), 40 F.3d
1096, 1104 (10th Cir. 1994) (the Fifth Amendment does not protect a police officer from
the disclosure of internal affairs statements, administratively compelled, to a grand jury);
but compare In re Grand Jury Proceedings, 45 F.3d 343, 347-48 (9th Cir. 1995) (“[T]he
district court’s statement that ‘a grand jury proceeding is not a criminal proceeding,’ is []
incorrect.”), with In re Grand Jury Subpoena, 75 F.3d 446, 448 (9th Cir. 1996) (finding
that the Fifth Amendment does not protect the production of an officer’s statements to
internal affairs, but instead “guards against any improper use of them”).
                                             18
United States, 350 U.S. 359, 362 (1956). As laypersons, the grand jurors, “do not know

and cannot be expected to know, the technical rules of evidence; and while, no doubt, it is

the duty of the prosecutor to give them such as he may in that respect, he has no control

over them.” Bartram, supra, 280 Md. at 625. To permit the subject of a grand jury’s

investigation to challenge the competency of evidence the grand jury considers

       would run counter to the whole history of the grand jury institution, in which
       laymen conduct their inquiries unfettered by technical rules. Neither justice
       nor the concept of a fair trial requires such a change. In a trial on the merits,
       defendants are entitled to a strict observance of all the rules designed to bring
       about a fair verdict. Defendants are not entitled, however, to a rule which
       would result in interminable delay but add nothing to the assurance of a fair
       trial.

Costello, 350 U.S. at 364. Accordingly, affirming the lower courts’ refusal to dismiss an

indictment on the ground that the only evidence before the grand jury was hearsay, the

Supreme Court in Costello instructed that “neither the Fifth Amendment nor any other

constitutional provision prescribes the kinds of evidence upon which grand juries must

act.” Costello, 350 U.S. at 362; cf. In re: Special Investigation No. 228, 54 Md. App. 149,

183 (1983) (citing Calandra, 414 U.S. at 351-52) (“Even to vindicate the loftiest

constitutional ideals, we do not suppress evidence at the grand jury level.”).

       That does not mean, however, that a person brought before a grand jury is without

Fifth Amendment protection. For example, the Supreme Court has established that a

witness may not ignore a grand jury subpoena, Mandujano, 425 U.S. at 573 (“Under settled

principles, the Fifth Amendment does not confer an absolute right to decline to respond in

a grand jury inquiry.”), but after doing so is free to assert the privilege against self-

incrimination unless the government offers the witness derivative use immunity, see

                                              19
Kastigar, supra, 406 U.S. at 462. The Court of Appeals has suggested that the distinction

lies somewhere between a grand jury’s consideration of incompetent evidence and a grand

jury forcing an individual to bear witness before the grand jury “browbeaten and

maltreated.” Bartram, supra, 280 Md. at 625-26. We believe the Supreme Court’s analysis

in Calandra offers a useful analogy.

                  2. A Grand Jury May Not Actively Coerce Testimony

       The State argues that, under Calandra, a grand jury is free to consider tainted

evidence so long as it does not taint the evidence itself. The County responds that

Calandra—a case that dealt with the Fourth Amendment’s applicability to grand juries—

is inapplicable because the Fourth Amendment’s exclusionary rule involves a different

calculus than the Fifth Amendment’s privilege. While the County’s distinction is correct,

the County misses Calandra’s broader, central teaching.

       In United States v. Calandra, a federal grand jury, which was convened to

investigate loansharking, subpoenaed a witness to testify based on receipts tending to

indicate the witness was a loanshark. 414 U.S. at 340-41. The witness sought and was

granted leave to move the federal district court to suppress use of the receipts as evidence

on the grounds that the police seized them from his home while executing an unrelated

search warrant, the scope of which did not include the receipts. Id. The district court

granted his motion, finding that the search warrant was not founded on probable cause and

the police exceeded the warrant’s scope. Id. at 342. In affirming the district court, the

Sixth Circuit ruled that the Fourth Amendment “exclusionary rule may be invoked by a

witness before the grand jury to bar questioning based on evidence obtained in an unlawful

                                            20
search and seizure.” Id.

       The Supreme Court granted certiorari to consider whether the Sixth Circuit erred in

applying the Fourth Amendment exclusionary rule to a grand jury proceeding. Id. at 339,

346. After setting out the grand jury’s historical role and function, the Court ruled that a

grand jury “may consider incompetent evidence, but it may not itself violate a valid

privilege, whether established by the Constitution, statutes, or the common law.” Id. at

346. The Court used the Fifth Amendment to illustrate this distinction: “Although, for

example, an indictment based on evidence obtained in violation of a defendant’s Fifth

Amendment privilege is nevertheless valid, the grand jury may not force a witness to

answer questions in violation of that constitutional guarantee.” Id. (citations omitted). The

Court concluded that the judiciary should only intervene if the grand jury subpoena “is far

too sweeping in its terms to be regarded as reasonable under the Fourth Amendment.” Id.

(citation and quotations omitted).

       Although the Calandra Court also stated that “a grand jury may not compel a person

to produce books and papers that would incriminate him[,]” Calandra, 414 U.S. at 346, the

Court has since narrowed the scope of this pronouncement. In a series of cases beginning

with Couch v. United States, followed by Fisher v. United States, the Supreme Court

explained that the Fifth Amendment is implicated only when the actual act of producing

the books or papers would incriminate the subpoenaed individual. Couch, 425 U.S. 322,

329 (1976); Fisher, 425 U.S. 391, 410-14 (1976). In other words, the Fifth Amendment is

implicated only where the act of producing the record is testimonial, or where the grand

jury forced the speaker to “restate, repeat, or affirm the truth of [the records’] contents.”

                                             21
United States v. Doe, 465 U.S. 605, 612 (1984). The Court of Appeals recognized that

“[a]fter Fisher, the focus of the Fifth Amendment privilege with respect to records and

documents became not the actual documents, but instead the act of producing the

documents.” Unnamed Att’y v. Att’y Grievance Comm’n of Maryland, 349 Md. 391, 405

(1998); see also Curran v. Price, 334 Md. 149, 175 (1994) (“[I]t is only the testimonial

nature of the act of production for which the privilege may be asserted.”).

       In Steffey v. State, this Court analyzed Calandra and applied its rule to a grand jury’s

consideration of allegedly coerced statements contained within a police department’s

internal affairs report. 82 Md. App. 647, 649, 651-52, 657-58 (1990). Although the posture

of the case was an already-indicted defendant’s motion to suppress, rather than the motion

to quash a subpoena at issue here, our analysis in Steffey is still germane. There, we

interpreted Calandra as standing for the proposition that courts should not dismiss

indictments based on “the evidence presented to grand juries and thus used during grand

jury proceedings. Rather, Calandra simply pointed out which actions by the grand juries

themselves would not be tolerated.” Id. at 658 (emphasis in original). Applying this

distinction to the grand jury’s subpoena of internal affairs documents containing

previously-coerced statements, we did not find a violation of the claimant’s constitutional

rights and held that the defendant was not entitled to relief. Id. at 658-59.

       These cases make clear that “[i]t 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.” Couch, 409 U.S. 328-29. Here, the grand jury is not compelling the

                                              22
County to speak; nor is it compelling the County to restate or affirm the truth of the

investigation report’s contents. See Doe, 465 U.S. at 612. 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.

                         3. Protecting Grand Jury Proceedings

       We have established that the grand jury acts independently of the judiciary, and the

County offers no grounds that justify the circuit court’s intervention in this case. See

Williams, supra, 504 U.S. at 47.       In Calandra, the Supreme Court cautioned that

“[p]ermitting witnesses to invoke the exclusionary rule before a grand jury would

precipitate adjudications of issues hitherto reserved for the trial on the merits and would

delay and disrupt grand jury proceedings.” 414 U.S. at 349. Calandra’s concern is

consistent with the rationale behind the Supreme Court’s oft-repeated rule that a defendant

may not challenge an indictment solely on the ground that the grand jury considered

incompetent evidence. See, e.g., Lawn v. United States, 355 U.S. 339, 348-50 (1958);

Costello, supra, 350 U.S. at 359, 363; Holt v. United States, 218 U.S. 245, 247-48 (1910).

The Court of Appeals similarly warned that:

       [I]f, on a motion to quash, the competency of the evidence presented could
       be inquired into, the trial courts would be obliged to sit as courts of review,
       to examine into the correctness of every ruling made upon the evidence by
       the grand jurors. The obstructions to justice and the unnecessary and
       uncalled-for waste of time, and consequent expense to the state as well as to
       defendants, which will result from such a course, are too obvious to need
       comment.

Bartram, supra, 280 Md. at 624-25 (citation omitted).

                                             23
        Allowing a claimant to challenge the evidence considered by the grand jury would

permit abuses of criminal practice and “saddle a grand jury with minitrials and preliminary

showings [that] would assuredly impede its investigation and frustrate the public’s interest

in the fair and expeditious administration of the criminal laws.” Dionisio, supra, 410 U.S.

at 17; see also Costello, 350 U.S. at 363 (“The result of such a rule [permitting indictments

to be challenged on the competency of evidence] would be that before trial on the merits a

defendant could always insist on a kind of preliminary trial to determine the competency

and adequacy of the evidence before the grand jury.”); cf. In re Special Investigation No.

227, 55 Md. App. 650, 654 (refusing to even consider the merits of petitioner’s claim,

because “the Fourth Amendment merits and the exclusionary rule ha[ve] no place at the

grand jury stage of investigation[.]”); Bartram v. State, 33 Md. App. 115, 183 (1976), aff’d,

280 Md. 616 (1977) (“The acid test of [the grand jury’s] actions, however, will come when

the petit jury renders its verdict upon the charges they have brought.”).

        In United States v. Blue, the Supreme Court considered whether or not the district

court should have dismissed an indictment based on tainted evidence. 384 U.S. 251, 254-

55 (1966). Blue filed a pretrial motion to dismiss his indictment because it was based on

incriminating statements that he made in petitions contesting certain jeopardy assessments

against him by the Internal Revenue Service. Id. at 252. Ultimately, the Court decided

that the proper outcome was not to dismiss the indictment but to allow the defendant to

“pursue his Fifth Amendment claim through motions to suppress and objections to

evidence.” Id. at 256. The Court reasoned:

              Even if we assume that the Government did acquire incriminating

                                             24
       evidence in violation of the Fifth Amendment, [the defendant] would at most
       be entitled to suppress the evidence and its fruits if they were sought to be
       used against him at trial. . . . Our numerous precedents ordering the exclusion
       of such illegally obtained evidence assume implicitly that the remedy does
       not extend to barring the prosecution altogether. So drastic a step might
       advance marginally some of the ends served by the exclusionary rules, but it
       would also increase to an intolerable degree interference with the public
       interest in having the guilty brought to book.

Id. at 255 (footnote omitted); see also Clark v. State, 140 Md. App. 540, 560 (2001) (citing

State v. Bailey, 289 Md. 143, 1490-50 (1980) (“Maryland’s appellate courts have been

‘steadfast’ in holding that a motion to dismiss [an indictment] is not a proper vehicle for

testing the admissibility of testimonial evidence at trial and that a defendant is not entitled

to dismissal because the prosecution presented tainted evidence to the grand jury.”).

       In keeping with the foregoing decisional law, 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[,]” Kastigar, supra, 406 U.S. at 435, and the

claimant may not assert the privilege until “confronted by substantial and ‘real,’ and not

merely trifling or imaginary, hazards of incrimination[,]” Marchetti, supra, 390 U.S. at 53.

The Fifth Amendment analysis focuses on the use of statements.

       Here, the firefighters may move to suppress their statements prior to trial. We do


                                              25
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.12 In conclusion, we hold that the circuit court

erred by granting the County’s motion to suppress the firefighters’ statements and the

investigation report. Accordingly, we need not reach the State’s third contention.

       For these reasons, we entered the November 23, 2016 per curiam order reversing

that part of the circuit court’s order granting Prince George’s County’s motion for

protective order as to the compelled statements of the respondent firefighters and the report

proposed by the Fire Department’s investigation.




       12
          The County also argues that, although not binding on this Court, the Fourth Circuit
in In re John, supra, 478 F.3d 581 (2007), “refused to overrule a federal District Court that
granted a city’s motion to quash a grand jury subpoena for internal affairs statements that
related to the same incident for which an officer was being investigated by the government
for civil rights violations.” While the County does state correctly the disposition in that
case, it disregards the fact that the district court based its decision not on the Fifth
Amendment, but on Federal Rule of Civil Procedure 17(c), which “enables district courts
to quash a subpoena that intrudes gravely on significant interests outside of the scope of a
recognized privilege[.]” John Doe, 478 F.3d at 585 (emphasis added) (citation omitted);
see also In re Grand Jury Matters, 751 F.2d 13, 17-18 (1st Cir. 1985) (“A judge may quash
grand jury subpoenas in the proper exercise of his rule 17(c) supervisory powers even
though the subpoenaed materials are not covered by a statutory, constitutional, or common
law privilege.” (citations omitted)). Additionally, the Fourth Circuit in John Doe only
reviewed the district court’s application of Rule 17(c) for abuse of discretion and did not
itself analyze the Fifth Amendment implications. 478 F.3d at 585. In short, the Fourth
Circuit’s decision does not persuade us against our decision here.
                                             26
