In re: Misc. 4281

Leahy, J. 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 , 87 S.Ct. 616 , 17 L.Ed.2d 562 (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 ²¹⁸ 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 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 ²¹⁹ 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 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. 3 ²²⁰ 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 find for the County on the first two points, the ²²¹ 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 , 790 A.2d 73 (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 preserved 5 and because it implicates a constitutional question ²²² that is not necessary to decide today. 6 Curran v. Price, 334 Md. 149, 171 , 638 A.2d 93 (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 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 ²²³ 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 , 87 S.Ct. 616 . The County also directs us to a case from the 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 , 123 A.3d 229 (2015). ²²⁴ 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 U.S. at 336, 93 S.Ct. 611 . 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, 93 S.Ct. 611 (quoting Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55 , 84 S.Ct. 1594 , 12 L.Ed.2d 678 (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 , 905 A.2d 315 (2006) (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 , 76 S.Ct. 497 , 100 L.Ed. 511 (1956) (footnote, citation, and internal quotation marks ²²⁵ omitted); see also Kastigar v. United States, 406 U.S. 441, 453 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (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 , 88 S.Ct. 697 , 19 L.Ed.2d 889 (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 , 110 S.Ct. 1056 , 108 L.Ed.2d 222 (1990) (emphasis added), the Supreme Court has 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 , 123 S.Ct. 1994 , 155 L.Ed.2d 984 (2003); Kastigar v. United States, 406 U.S. 441, 444-45 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (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 , 123 S.Ct. 1994 . ²²⁶ In sura, 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 statements against the officers in subsequent prosecutions. 385 U.S. at 494-95 , 87 S.Ct. 616 .

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 , 87 S.Ct. 616 . 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 , 790 A.2d 73 (alteration omitted) (quoting United States v. Camacho, 739 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 , 123 S.Ct. 1994 (“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.”). ²²⁷ 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 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 , 39 S.Ct. 468 , 63 L.Ed. 979 (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 , 96 S.Ct. 1768 , 48 ²²⁸ L.Ed.2d 212 (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 , 112 S.Ct. 1735 , 118 L.Ed.2d 352 (1992). Judge Digges, writing for the Court of Appeals in 1927 in Pemng, 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 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 tradi ²²⁹ tionally accorded the grand jury “wide latitude to inquire into violations of criminal law.” United States v. Calandra, 414 U.S. 338, 343 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (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 , 94 S.Ct. 613 ; see also Bartram v. State, 280 Md. 616, 627 , 374 A.2d 1144 (1977) (citations omitted) (“ ‘The grand jury is an accusing body, and not a judicial tribunal.’ ”) The grand jury’s authority “to require the production of evidence” is “[indispensable to the exercise of its power.” Mandujano, 425 U.S. at 571 , 96 S.Ct. 1768 (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 , 94 S.Ct. 613 . Its “investigative power must be broad if its public responsibility is adequately to be discharged.” Id. at 344 , 94 S.Ct. 613 (citations omitted).

For this reason, the Court of Appeals has repeatedly described the grand jury’s inquisitorial powers as “plenary.” See, e.g., Lykins v. State, 288 Md. 71, 82 , 415 A.2d 1113 (1980); Perring, 152 Md. at 621 , 137 A. at 372 . 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 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973). Like the grand jury itself, this duty stems from common law roots. The Supreme Court has remarked that it is unclear ²³⁰ 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 , 39 S.Ct. 468 (citing Countess of Shrewsbury’s Case, 2 How.

St. Tr. 769, 778 (K.B. 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 , 39 S.Ct. 468 . 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 , 557 A.2d 235 (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 , 166 A. 45 (1933). Maintaining secrecy is an “inflexible requirement,” id. 566-67 , 166 A. 45 , which ensures the grand jury furthers public justice by remaining free from inducement and outside influence. Jones v. State, 297 Md. 7, 23 , 464 A.2d 977 (1983); see also Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218-19 , 99 S.Ct. 1667 , 60 L.Ed.2d 156 (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 , 99 S.Ct. 1667 , as well as “individuals whose conduct may be investigated, but against whom no indictment may be found[.]” Coblentz, 164 Md. at 567 , 166 A. 45 . ²³¹ 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 , 112 S.Ct. 1735 . “In fact the whole 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 , 94 S.Ct. 613 .

The grand jury has an “arm’s length” relationship with the judiciary. Williams, 504 U.S. at 48 , 112 S.Ct. 1735 . 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 , 93 S.Ct. 764 ). 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 , 16 S.Ct. 611 , 40 L.Ed. 816 (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 , 16 S.Ct. 611 . 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 ²³² in court, or, at the least, by complaint before a 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 , 16 S.Ct. 611 (emphasis added) (internal citations omitted); see also Virginia v. Paul, 148 U.S. 107, 119 , 13 S.Ct. 536 , 37 L.Ed. 386 (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 , 148 A.2d 384 (1959) (rejecting appellant’s argument that the grand jury unreasonably delayed presenting appellant’s indictment, the Court held that “[ujntil 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 , 94 S.Ct. 613 (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 , 39 S.Ct. 468 (citing Hendricks v. United States, 223 U.S. 178, 184 , 32 S.Ct. 313 , 56 L.Ed. 394 (1912)), and a grand jury investigation may never actually result in a criminal proceeding.

Cf. Chavez, supra, 538 U.S. at 766 , 123 S.Ct. 1994 (stating that it “need not decide today the precise moment when a ‘criminal case’ commences[,]” but reasoning that “[i]n our view, a ‘criminal case at the very least requires ²³³ 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