[Cite as State v. Jackson, 125 Ohio St.3d 218, 2010-Ohio-621.]




     THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. JACKSON,
                          APPELLEE AND CROSS-APPELLANT.
         [Cite as State v. Jackson, 125 Ohio St.3d 218, 2010-Ohio-621.]
In a criminal proceeding against a public employee, the state may not make direct
        or derivative use of the employee’s statement that was compelled under
        threat of the employee’s removal from office (“Garrity statement”) — The
        state makes derivative use of a Garrity statement when the prosecutor
        presents to the grand jury testimony from a witness to a Garrity statement
        — The state makes derivative use of a Garrity statement when the
        prosecutor reviews a Garrity statement in preparation for trial — When
        the state fails to prove that it did not make any use of a Garrity statement
        in obtaining an indictment, the indictment must be dismissed.
 (No. 2008-1499 — Submitted September 29, 2009 — Decided March 3, 2010.)
     APPEAL and CROSS-APPEAL from the Court of Appeals for Stark County,
                         No. 2007CA00274, 2008-Ohio-2944.
                                  __________________
        LANZINGER, J.
        {¶ 1} This case concerns a public employee’s statement given during an
internal investigation under the threat of the employee’s termination from office, a
so-called Garrity statement. Garrity v. New Jersey (1967), 385 U.S. 493, 87 S.Ct.
616, 17 L.Ed.2d 562. We are asked to determine whether the Garrity statement
was “used” by the state in a later prosecution of the public employee and, if so,
the consequences of that use.
                                  I. Case Background
        {¶ 2} Anthony         Jackson,     appellee    and       cross-appellant,   was   on
administrative leave from the Canton Police Department when he was involved in
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an incident that eventually led to his indictment for possession of a firearm in a
bar. On May 30, 2006, Sergeant Jon Roethlisberger of the Perry Township Police
Department responded to a call about a fight at Lew’s Tavern in Perry Township.
Jackson and another person were involved, but neither wished to pursue criminal
charges. While talking to a bar patron on the night of the incident, Roethlisberger
learned that Jackson had possessed a firearm inside the tavern.
       {¶ 3} Lieutenant David Davis investigated the incident on behalf of the
Canton Police Department’s Internal Affairs Unit.         As part of this internal
investigation, Davis ordered Jackson to submit to an interview and make a
statement. Davis gave Jackson a document titled “Garrity Warning” before this
interview. The warning stated:
       {¶ 4} “This questioning concerns administrative matters relating to the
official business of the Canton Police Department. During the course of this
questioning, if you disclose information which indicates that you may be guilty of
criminal conduct, neither your self-incriminating statements nor the fruits of any
self-incriminating statements you make will be used against you in any criminal
legal proceedings.     Since this is an administrative matter and any self-
incriminating information you may disclose will not be used against you in a
court of law, you are required to answer my questions fully and truthfully. * * *
If you refuse to answer all my questions, this in itself is a violation of the rules
and procedures of the department, and you will be subject to separate disciplinary
action.”
       {¶ 5} In other words, the police department assured Jackson that neither
his statement nor its “fruits” would be used later in any criminal proceeding.
       {¶ 6} Jackson gave detailed answers to questions regarding the May 30,
2006 Lew’s Tavern incident (the “Garrity statement”). He also disclosed the
name of a potential witness, Vince Van. The state acknowledges that no one
connected to the investigation had previously been aware that a person named




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Vince Van was a potential witness. After Jackson answered Davis’s questions,
Davis continued to investigate by interviewing Van.
        {¶ 7} Both Roethlisberger and Davis testified before a grand jury on
August 10, 2006. The grand jury testimony, which the trial court ordered to be
included under seal as part of the record, reveals that Davis testified on the
propriety of an officer’s carrying a firearm while on administrative leave and on
the implications of administrative leave in general.               When Davis was asked
whether he had spoken to Jackson about the incident, he acknowledged the
existence of Jackson’s Garrity statement, but declined to divulge its contents.
The grand jury returned an indictment against Jackson for possession of a firearm
in a D-permit liquor establishment in violation of R.C. 2923.121(A).
        {¶ 8} It is not clear from the record whether the indicting prosecutor had
obtained a copy of Jackson’s Garrity statement before the indictment was
returned, but the trial prosecutor, who was not the same person as the indicting
prosecutor, acknowledged that he had obtained a copy of this statement sometime
between July 24 and September 20, 2006.
        {¶ 9} Jackson filed a motion to dismiss,1 arguing that the state had
improperly used the fruits of his Garrity statement. The trial court held that
Davis’s testimony before the grand jury violated Jackson’s Fifth Amendment
rights pursuant to Garrity, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, because
Davis had knowledge of Jackson’s compelled statements. The court therefore
dismissed the indictment.
        {¶ 10} The Fifth District Court of Appeals agreed that Jackson’s Fifth
Amendment rights had been violated.                   State v. Jackson, 5th Dist. No.
2007CA00274, 2008-Ohio-2944, ¶ 31. However, the court of appeals reversed the


1. Although the trial court noted that motions to dismiss are not permitted in criminal cases, it
nevertheless treated the motion as one that may be considered under Crim.R. 12(C).




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portion of the trial court opinion that dismissed the indictment and held that
Jackson’s Garrity statement was not used to obtain the indictment but was used
by the trial prosecutor after indictment. Id. at ¶ 35. The court also held that the
proper remedy for the Garrity violation was to purge the prosecutor’s files of the
internal-affairs file, including the Garrity statement, and try the case with a new
prosecutor. Id. at ¶ 37.
        {¶ 11} We accepted jurisdiction over the state’s appeal on the following
proposition of law: “When a public employer compels an employee to give a
statement under threat of removal from office, Garrity * * * prohibits the direct or
derivative use of the statement in a subsequent criminal trial, but it does not
prohibit a prosecutor’s knowledge, or ‘non-evidentiary’ use of it.”                We also
accepted jurisdiction over Jackson’s cross-appeal on the following proposition of
law: “When a public employer compels an employee to give a statement under
threat of removal from office, and then subsequently provides that statement to
the prosecuting attorney who is pursuing a criminal conviction against the
employee, State v. Conrad (1990), 50 Ohio St.3d 1, 552 N.E.2d 214, requires
dismissal of the case unless the prosecuting attorney can establish that the state
has not made any use of the [Garrity statement] and that all of the evidence to be
used at trial was derived from sources wholly independent of that [Garrity
statement].” In other words, we are asked to (1) define the meaning of “use” for
Garrity purposes and (2) clarify the remedy for a Garrity violation.
                                   II. Legal Analysis
        {¶ 12} Statements such as Jackson’s Garrity statement are compelled
statements and are subject to the constitutional protections of the Fifth and
Fourteenth Amendments.2


2. The Fifth Amendment to the United States Constitution states, “No person * * * shall be
compelled in any criminal case to be a witness against himself * * *.” The Fifth Amendment
applies to the states via the Fourteenth Amendment. The Ohio Constitution similarly provides,




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                A. Garrity v. New Jersey and Kastigar v. United States
        {¶ 13} In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d
562, police officers being investigated for criminal activity were given a choice to
either answer the questions asked during the internal investigation or forfeit their
jobs. The officers chose to answer questions. Later, some of their answers were
used against them in criminal proceedings. The United States Supreme Court
held that the officers’ confessions had been compelled because they were given
the choice between forfeiting their jobs and incriminating themselves. Id. at 496-
498. The court held that the protection against self-incrimination prohibits use in
later criminal proceedings of statements made under threat of removal from
office. Id. at 499-500.
        {¶ 14} Five years later, the United States Supreme Court held that when a
person is granted immunity to compel his or her testimony, that testimony and any
evidence derived from it cannot be used against the declarant in a later criminal
proceeding. Kastigar v. United States (1972), 406 U.S. 441, 92 S.Ct. 1653, 32
L.Ed.2d 212. The court explained that full transactional immunity for crimes
discussed in a compelled statement is broader than that which is required by the
Fifth Amendment. However, to be commensurate with the Fifth Amendment, the
immunity must prohibit both “use” and “derivative use” of a compelled statement.
“[A grant of immunity] prohibits the prosecutorial authorities from using the
compelled testimony in any respect, and it therefore insures that the testimony
cannot lead to the infliction of criminal penalties on the witness.” Kastigar at
453. In a criminal proceeding against a public employee, the state may not make
direct or derivative use of an employee’s statement that was compelled under
threat of the employee’s removal from office.


“No person shall be compelled, in any criminal case, to be a witness against himself.” Section 10,
Article I, Ohio Constitution.




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                         B. Use of Compelled Statements
        {¶ 15} The trial court in this case wrestled with the implications of the
Kastigar holding: “The Kastigar decision seems straightforward enough when we
are determining whether the government has ‘used’ immunized testimony as
direct evidence in a case. But what does the term ‘derivative use’ mean; what
does the court mean when it says ‘barring the use of compelled testimony as an
investigatory lead’ * * * [?]”
        {¶ 16} The federal courts have not consistently interpreted Kastigar
regarding nonevidentiary use of a compelled statement. Compare, e.g., United
States v. McDaniel (C.A.8, 1973), 482 F.2d 305 (requiring the government to
show no nonevidentiary use of compelled statement to which prosecutor had had
access) with United States v. Byrd (C.A.11, 1985), 765 F.2d 1524, and United
States v. Mariani (C.A.2, 1988), 851 F.2d 595 (declining to hold that prosecutors’
access to compelled statement required government to prove no nonevidentiary
use).
        {¶ 17} Nevertheless, the United States Supreme Court has rejected the
notion that the protection offered by immunity is limited to direct use of the
statement itself: “It has * * * long been settled that [the Fifth Amendment’s]
protection encompasses compelled statements that lead to the discovery of
incriminating evidence even though the statements themselves are not
incriminating and are not introduced into evidence.” United States v. Hubbell
(2000), 530 U.S. 27, 37, 120 S.Ct. 2037, 147 L.Ed.2d 24. Cases decided since
Garrity, such as Kastigar and Hubbell, demonstrate that the “use” against which
Garrity protects is broad, encompassing evidentiary and nonevidentiary use of
any compelled statement.
        {¶ 18} In Jackson’s case, we must determine whether the state has met its
Kastigar burden. “[T]he Kastigar court established a two-pronged test that the
prosecution must satisfy where a witness makes the claim that his or her




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immunized testimony was used: (1) the government must deny any use of the
accused’s own immunized testimony against him or her in a criminal case; and (2)
the government must affirmatively prove that all of the evidence to be used at trial
is derived from sources wholly independent of immunized testimony.” (Emphasis
sic.) State v. Conrad (1990), 50 Ohio St.3d 1, 4, 552 N.E.2d 214.
               1. The Use of a Garrity Statement Before Indictment
       {¶ 19} The state argues that Jackson’s Garrity statement was not used in
any way at the indictment phase. It contends that although Jackson’s statement
had disclosed the name of a previously unknown witness, the witness was never
mentioned to the grand jury, and Davis explicitly declined to discuss the content
of Jackson’s statement. The state also notes that it is not clear that the prosecutor
even had access to the internal investigatory statement before the indictment was
obtained.
       {¶ 20} Jackson argues that because Davis was present during the making
of the Garrity statement and afterward became a witness before the grand jury,
the statement was used to obtain the indictment. We agree. It is not the extent of
the prosecutor’s own knowledge of the contents of the Garrity statement that
creates the problem here. The prosecutor chose to offer the testimony of the
internal investigating officer who knew the substance of Jackson’s Garrity
statement and who used the statement to further his own internal investigation.
As the trial court explained: “It is not the direct evidence that is of concern. It is
the ‘derivative use’ or the ‘non-evidentiary use’ of that information which poses a
problem in this matter.” The state makes derivative use of a Garrity statement
when the prosecutor presents to the grand jury testimony from a witness to the
statement. We agree with the trial court’s determination that Davis’s testimony
before the grand jury constituted derivative use of Jackson’s statement by the state
in violation of Garrity.




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       {¶ 21} When Jackson claimed that his immunized testimony was used in
violation of his constitutional rights, it was the state’s burden to satisfy both
prongs of the Kastigar test: first, to deny that it had made any use of his
immunized testimony, and second, to affirmatively prove that all the evidence to
be used at trial was derived from wholly independent sources. Although at the
Kastigar hearing the state denied that it had used Jackson’s statement, the state
did not address its derivative use of the statement by presenting to the grand jury
the testimony of Davis, who witnessed the Garrity statement. Nor did the state
affirmatively prove that it could have learned of Vince Van’s existence or the
contents of his statement from independent sources. The trial court emphasized
the lack of information introduced at the Kastigar hearing concerning the conduct
of the prosecutors: “[T]here was no testimony as to the interaction, if any,
between the grand jury prosecutor and Lt. Davis; interaction between the grand
jury prosecutor and the trial prosecutor, if any, interaction between Lt. Davis and
the trial prosecutor, if any; nor when the Internal Affairs investigative file was
received by the prosecutor, who read it and what they read.” We therefore hold
that the state has not met either prong of the Kastigar test.
             2. The Use of a Garrity Statement During Trial Preparation
       {¶ 22} The state argues that Jackson’s statement was not used in any
respect in preparing for trial. Vince Van, who was disclosed as a possible witness
only in Jackson’s Garrity statement, was not on the state’s list of potential
witnesses. Although the trial prosecutor acknowledges having had a copy of the
statement, the state argues that the mere fact that the prosecutor had knowledge of
the contents of the statement does not mean that the state improperly used the
statement.
       {¶ 23} Jackson emphasizes that the prosecutor not only admitted having a
copy of the statement, but also acknowledged that he “had the benefit of Internal
Affairs reports for the purposes of pretrial preparation.”




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       {¶ 24} We share the concern of the trial court and court of appeals that the
prosecutor, who admitted having reviewed Jackson’s Garrity statement, was
afforded an impermissible advantage in trial preparation. A defendant’s version
of events provides the prosecutor with invaluable information, including the
names of witnesses, potential defenses, and other information that could influence
trial strategy. In other words, the prosecutor possessed the type of information
that the United States Supreme Court was most concerned with in Kastigar. The
state makes derivative use of a Garrity statement when the prosecutor reviews the
statement in preparation for trial.
       {¶ 25} The state did have the opportunity to deny having used Jackson’s
Garrity statement.      Nevertheless, as discussed above, the state did not
affirmatively prove that all of the evidence to be used at trial was derived from
wholly independent sources. We therefore hold that the prosecutor’s possession
of Jackson’s Garrity statement during trial preparation constituted an improper
use within the meaning of Garrity. In summary, we hold that the state makes
derivative use of a Garrity statement both when the prosecutor presents to the
grand jury testimony from a witness to a Garrity statement and when the
prosecutor reviews a Garrity statement in preparation for trial.
       {¶ 26} The prosecutor’s use of the statement during trial preparation not
only violated Jackson’s constitutional rights, but also revealed that the police
department broke its promise to Jackson that neither the statement nor the fruits of
the statement would be used in a later criminal proceeding. When such a promise
has been made to a public employee, the public employer should not provide the
prosecutor with the compelled statement. When the state is free to review a
Garrity statement, the public employer cannot ensure that the statement will not
be used directly or derivatively. The public employer may run a risk of a lawsuit
if it turns over a Garrity statement to prosecutors, for the Sixth Circuit recently
held in McKinley v. Mansfield (C.A.6, 2005), 404 F.3d 418, that police officers



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who turn over another officer’s compelled statement to a prosecutor can be held
liable for violating the officer’s constitutional rights. Id. at 436-439.
       {¶ 27} Although the issue of liability for turning over a compelled
statement is not before us, we note that a public employer can ensure that it does
not violate the defendant’s right against self-incrimination only by refraining from
providing a compelled statement to the prosecutor when a criminal proceeding
ensues. A bright-line prohibition against providing a compelled statement to a
prosecutor is both workable and practical. First, because a prosecutor is not
permitted to make any use of a compelled statement, denying the prosecutor the
opportunity to view the statement will not hinder the prosecutor’s ability to
prepare for trial. Second, when a defendant cannot allege that the prosecutor has
made use of the statement, there is no need to conduct a time-consuming Kastigar
hearing. Finally, when there is no threat that a prosecutor will eventually see the
contents of a compelled statement, public employees will be more willing to
comply with internal investigations.
       {¶ 28} The argument that denying prosecutors access to compelled
statements will cause them to violate their constitutional obligation to reveal
exculpatory evidence under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215, is not well taken. Any Garrity statement made during an
internal investigation is by definition made by the defendant, who already has
knowledge of its contents.
                       C. The Remedy for a Garrity Violation
                        1. For a Violation Before Indictment
       {¶ 29} In State v. Conrad, 50 Ohio St.3d 1, 552 N.E.2d 214, the
prosecutor’s use of a compelled statement was found to have tainted the
defendant’s indictment. We held that “whenever compelled testimony is used
against the witness who provided it, any error cannot be held harmless.” Id. at 5.
We therefore remanded the case for dismissal of the indictment. In this case,




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Jackson’s statement was also used to obtain the indictment. Therefore, the trial
court has correctly determined that dismissal is the appropriate remedy. When the
state fails to prove that it did not make any use of a Garrity statement in obtaining
an indictment, the indictment must be dismissed.
       {¶ 30} The state has argued that when a police department assigns the
same person to both the criminal investigation and the internal investigation
(which it claims is often necessary in small departments), our holding that the
state makes derivative use of a Garrity statement when the prosecutor presents
testimony to the grand jury from a Garrity-statement witness requires the
department to choose between a criminal prosecution and an internal
investigation.   However, a police department can always assign the internal
investigation of a police officer to an officer who has not taken part in and will
not take part in the criminal investigation. In the alternative, a police department
can simply wait until the conclusion of criminal proceedings before conducting an
internal investigation.
                    2. For a Violation During Trial Preparation
       {¶ 31} The court of appeals held that the appropriate remedy for a Garrity
violation after indictment was to purge the compelled statement from the
prosecutor’s file and to appoint a replacement prosecutor to try the case. State v.
Jackson, 2008-Ohio-2944, ¶ 37. We find this solution unnecessary.
       {¶ 32} Kastigar held that the proscription against using a defendant’s
compelled statement is analogous to the proscription against using a defendant’s
coerced confession. Kastigar, 406 U.S. at 461, 92 S.Ct. 1653, 32 L.Ed.2d 212. A
coerced confession is inadmissible in a criminal trial, but does not bar
prosecution. Id. If a court rules that a confession was coerced in violation of the
Fifth Amendment, the confession must be suppressed. State v. Robinson (1990),
67 Ohio App.3d 743, 745, 588 N.E.2d 876, citing Colorado v. Connelly (1986),
479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473. Likewise, when a trial court rules



                                         11
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after a Kastigar hearing that a prosecutor has used the defendant’s compelled
statement in preparation for trial after indictment, the appropriate remedy is for
the trial court to suppress that statement and all evidence derived from the
statement.
          {¶ 33} We acknowledge that a trial court will be unable to fully suppress
all impermissible knowledge gained by a prosecutor who reviews a Garrity
statement.     However, just as the exclusionary rule operates to discourage
compelled confessions, which may provide the state with information otherwise
unobtainable, suppression of a Garrity statement and its derivative evidence will
discourage use of the statement in violation of the employee’s Fifth Amendment
rights.
                                   III. Conclusion
          {¶ 34} For the foregoing reasons, we hold that the state failed to meet its
burden to show that it did not use Jackson’s Garrity statement either before the
grand jury or during trial preparation. Because the state did not meet its burden
with respect to the indictment, we reverse the judgment of the court of appeals
and reinstate the judgment of the trial court dismissing the indictment.
                                                                 Judgment reversed.
          MOYER, C.J., and O’CONNOR, J., concur.
          PFEIFER and O’DONNELL, JJ, concur separately.
          LUNDBERG STRATTON and CUPP, JJ., dissent.
                                __________________
          O’DONNELL, J., concurring.
          {¶ 35} I concur in the majority’s judgment that based upon the facts of
this case, the state cannot demonstrate compliance with either Kastigar v. United
States (1972), 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, or Garrity v. New
Jersey (1967), 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. However, I write
separately to emphasize that the state cannot use any information directly or




                                          12
                              January Term, 2010




indirectly derived from a Garrity statement in a criminal proceeding against the
public employee who made the statement unless the state denies any use of the
immunized testimony and also affirmatively proves an independent, legitimate
source for all of the evidence to be introduced at trial. In my view, if a prosecutor
has reviewed a defendant’s Garrity statement before trial and fails to carry the
burden to establish an independent source for the evidence, the only appropriate
remedy is dismissal of the indictment.
       {¶ 36} In Garrity, the Supreme Court of the United States 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 [the protection] extends to
all, whether they are policemen or other members of our body politic.” Garrity,
385 U.S. at 500, 87 S.Ct. 616, 17 L.Ed.2d 562. In Kastigar, the court explained
that the immunity used to compel such testimony is “coextensive with the scope
of the privilege against self-incrimination” and that it prohibits not only the use of
compelled testimony, but also the use of any “evidence derived directly and
indirectly therefrom.” Kastigar, 406 U.S. at 453, 92 S.Ct. 1653, 32 L.Ed.2d 212.
In sum, the court concluded that the grant of immunity prohibits the prosecution
“from using the compelled testimony in any respect.” Id.
       {¶ 37} To enforce the prohibition against the use of compelled testimony,
the court reaffirmed the rule set forth in Murphy v. Waterfront Comm. of New
York Harbor (1964), 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678, fn. 18,
when it imposed an affirmative burden upon the state to demonstrate that its
evidence was not tainted by requiring the state to establish an independent,
legitimate source for the disputed evidence. Kastigar, 406 U.S. at 460, 92 S.Ct.
1653, 32 L.Ed.2d 212. The court emphasized, “This burden of proof, which we
reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on
the prosecution the affirmative duty to prove that the evidence it proposes to use



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is derived from a legitimate source wholly independent of the compelled
testimony.” Id. at 460. The court recognized that its holding placed a “heavy
burden” on the government to demonstrate that it obtained all of its evidence from
independent sources, thereby placing a defendant facing incriminating evidence
obtained through a grant of immunity in a stronger position than a defendant
asserting a Fifth Amendment claim related to a coerced confession. Id. at 461.
       {¶ 38} In State v. Conrad (1990), 50 Ohio St.3d 1, 4, 552 N.E.2d 214, this
court applied Kastigar and held that when an accused asserts that the state has
used evidence from a Garrity statement, “(1) the government must deny any use
of the accused’s own immunized testimony against him or her in a criminal case;
and (2) the government must affirmatively prove that all of the evidence to be
used at trial is derived from sources wholly independent of immunized
testimony.” (Emphasis sic.)
       {¶ 39} As the majority acknowledges, a defendant’s Garrity statement
may provide a prosecutor with information that could lead to the discovery of
additional evidence or witnesses for trial.     But regardless of the evidentiary
consequences, information about the defendant’s theory of the case and
knowledge of the defendant’s own version of the events give the prosecutor an
unfair advantage in conducting an investigation and planning trial strategy.
Kastigar and Conrad seek to eliminate both the direct and indirect use of
information obtained in violation of a defendant’s constitutional right against self-
incrimination by broadly proscribing any use of a defendant’s compelled
statement. Because knowledge of the information contained in a Garrity
statement may imperceptibly influence a prosecutor’s view of a case, the
government cannot plausibly deny any use of a defendant’s compelled statement
when the prosecutor has read it before trial. Therefore, I would hold that when a
prosecutor has reviewed a defendant’s Garrity statement before trial and fails to




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establish an independent source for the evidence to be used at trial, dismissal of
the indictment rather than suppression of the evidence is the appropriate remedy.
        PFEIFER, J., concurs in the foregoing opinion.
                                __________________
        CUPP, J., dissenting.
        {¶ 40} Kastigar v. United States (1972), 406 U.S. 441, 92 S.Ct. 1653, 32
L.Ed.2d 212, requires a prosecutor to prove that the material the prosecutor
proposes to use as evidence against the defendant came from a source
independent of the defendant’s compelled statements. Because I do not share the
majority’s view that the state’s using Lieutenant Davis, who was present when
Jackson gave his compelled statement, as a grand jury witness constituted
derivative use of Jackson’s statement under Kastigar, I dissent from the
majority’s holding that the indictment in this case must be dismissed. See United
States v. Byrd (C.A.11, 1985), 765 F.2d 1524, 1529 (“The government is not
required to negate all abstract ‘possibility’ of taint”).
        {¶ 41} The court of appeals concluded that Jackson’s compelled statement
was not used to obtain the indictment. The record supports that conclusion. When
Davis was asked about Jackson’s statement during the grand jury proceedings, he
declined to answer. By contrast, in State v. Conrad (1990), 50 Ohio St.3d 1, 4-5,
552 N.E.2d 214, this court held that the indictment had to be dismissed because
the prosecutor had used the defendant’s compelled statement to impeach her
testimony before the grand jury.
        {¶ 42} The majority expresses concern that the prosecutor, who possessed
and had reviewed Jackson’s compelled statement, was given an impermissible
advantage in trial preparation. Majority opinion at ¶ 24. The court of appeals
similarly noted that the state had learned of a potential witness to the alleged
crime (Vince Van) through Jackson’s compelled statement. But the state did not
present information from Van’s statement to the grand jury and did not list Van as



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a trial witness. This case differs from United States v. Hubbell (2000), 530 U.S.
27, 120 S.Ct. 2037, 147 L.Ed.2d 24, in which the defendant’s testimonial act of
producing extensive incriminating documents in response to a broadly worded
government subpoena provided the evidence that was used to convict him of
another crime. Id. at 41-43, quoting the government’s brief (“It was only through
respondent's truthful reply to the subpoena that the Government received the
incriminating documents of which it made ‘substantial use * * * in the
investigation that led to the indictment’ ”). In this case, the record does not
establish that Jackson’s statement provided a “ ‘link in the chain of evidence
needed to prosecute’ ” Jackson. Hubbell, 530 U.S. at 38, quoting Hoffman v.
United States (1951), 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118.
         {¶ 43} Consequently, neither Kastigar nor Conrad requires dismissal of
the indictment in this case.
         {¶ 44} Having concluded, erroneously in my view, that because Davis
testified before the grand jury the indictment must be dismissed, the majority goes
on to discuss its concern that the prosecutor’s having read Jackson’s compelled
statement will give the state an impermissible advantage at trial. With regard to
the evidence that the state intends to use at trial, the state must show that it has an
“ ‘independent, legitimate source for the disputed evidence.’ ” Kastigar, 406 U.S.
at 460, 92 S.Ct. 1653, 32 L.Ed.2d 212, quoting Murphy v. Waterfront Comm. of
New York Harbor (1964), 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678, fn. 18.
To the extent that any question remains about the state’s trial evidence, Jackson’s
remedy is to move to exclude his statement and its fruits from evidence at trial.3




3. The majority, at one point in its opinion, apparently agrees that suppression of Jackson’s
statement and any evidence obtained therefrom is the appropriate remedy for a Garrity violation.
Majority opinion at ¶ 32. However, the majority also states that the state makes derivative use of a
Garrity statement when the prosecutor reviews a statement in preparation for trial, and even when
the prosecutor merely has possession of the statement but does not review it. Id. at ¶ 25.




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                                January Term, 2010




        {¶ 45} Assuming that the state will not introduce the compelled statement
or its fruits at trial and will not use the statement for impeachment at trial, the
only question that remains is whether the prosecutor’s exposure to the compelled
statement and the internal-affairs file has directly affected the state’s trial strategy
(such as choice of witnesses, for example). The federal courts of appeals have
taken different approaches to claims that exposure to a defendant’s compelled
statement may have affected the government’s trial strategy. Compare United
States v. McDaniel (C.A.8, 1973), 482 F.2d 305, 311 (“[Immunity protection]
must forbid all prosecutorial use of the testimony, not merely that which results in
the presentation of evidence before the jury”) with United States v. Rivieccio
(C.A.2, 1990), 919 F.2d 812, 815 (“To the extent the Government’s thought
process or questioning of witnesses may have been influenced by Appellant’s
immunized testimony, we hold that any such use was merely tangential and was
therefore not a prohibited use”).
        {¶ 46} If the majority believes that the trial prosecutor in this case, who
admitted to having reviewed Jackson’s compelled statement, was afforded an
impermissible direct advantage in trial strategy, then the court should afford the
state the option of accepting the court of appeals’ remedy—allowing the state to
try the case without the disputed evidence and with a new trial prosecutor who has
not seen any of the disputed evidence—instead of dismissing the case outright.
This less drastic option also would further the majority’s stated goal of
discouraging the improper sharing of compelled testimony obtained in an internal-
affairs investigation with the prosecution team in the related criminal proceeding.
Apparently, the majority is disinclined to permit this reasonable solution as an
optional remedy to the state.
        {¶ 47} For these reasons, I dissent from the majority’s decision to
reinstate the trial court’s dismissal of the indictment in this case.
        LUNDBERG STRATTON, J., concurs in the foregoing opinion.



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                           SUPREME COURT OF OHIO




                              __________________
       John D. Ferrero, Stark County Prosecuting Attorney, and Kathleen
Tatarsky, Assistant Prosecuting Attorney, for appellant and cross-appellee.
       Bradley R. Iams, for appellee and cross-appellant.
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith
Anton Lapp, Assistant Prosecuting Attorney, for amicus curiae, Ohio Prosecuting
Attorney’s Association, in support of appellant and cross-appellee.
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Alexandra T. Schimmer, Chief Deputy Solicitor General, and David M.
Lieberman, Deputy Solicitor, for amicus curiae, Ohio Attorney General, in
support of appellant and cross-appellee.
       Joseph Martuccio, Canton Law Director, and Kevin R. L’Hommedieu,
Assistant Law Director; Schottenstein, Zox & Dunn Co., L.P.A., Stephen L.
Byron, and Stephen J. Smith; John Gotherman; Robert L. Berry Co., L.P.A., and
Robert L. Berry; and Pericles G. Stergios, Massillon Law Director, for amici
curiae, city of Canton, Ohio Municipal League, city of Massillon, and Buckeye
State Sheriffs’ Association, in support of appellant and cross-appellee.
       Crabbe, Brown & James, L.L.P., Larry H. James, Christina L. Corl, and
Lindsay L. Ford; and Paul Cox, for amici curiae National Fraternal Order of
Police and Fraternal Order of Police of Ohio, Inc., in support of appellee and
cross-appellant.
       Mary Lou Sekula, urging affirmance for amicus curiae Canton Police
Patrolman’s Association, in support of appellee and cross-appellant.
       Aaron Nisenson, for amicus curiae International Union of Police
Associations, AFL-CIO, in support of appellee and cross-appellant.
                            ______________________




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