In re: Misc. 4281 , 231 Md. App. 214 ( 2016 )

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