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Officer’s internal statement not allowed in criminal trial

October 13, 2015

The Indiana Court of Appeals agreed with a Fort Wayne police officer that a statement he gave as part of an internal affairs investigation into his role in a break-in of a foreclosed home should not be allowed at his criminal trial.

Fort Wayne Police Sgt. Scott Criswell and the wives of two other Fort Wayne police officers, while at a party, allegedly forcibly entered a nearby home and took a chainsaw and two gas cans. As part of an internal investigation by the police department, Criswell gave a statement regarding the events in question after signing a “Garrity Notice.” The notice said refusal to testify or answer questions could subject him to department charges, including dismissal.

Nearly six months after giving the statement, Criswell was charged with Class A misdemeanors criminal conversion and criminal trespass. He filed a motion to dismiss or suppress, arguing the criminal charges were brought in violation of his Fifth Amendment privilege against self-incrimination, as well as the legal protections outlined in Garrity v. New Jersey, 385 U.S. 493 (1967), and Kastigar v. United States, 406 U.S. 441 (1972). The trial court denied his motion, leading to his interlocutory appeal in Scott A. Criswell v. State of Indiana, 02A03-1501-CR-22.

The record shows that Criswell participated in the internal affairs investigation after being notified that his failure to cooperate could result in the termination of his employment, and after being assured, in writing, that any statements he made could not be used against him in any potential subsequent criminal proceedings. Thus, Garrity applies to the instant matter and his motion to suppress should have been granted, Judge Cale Bradford wrote.

The state argued that it had evidence independent of the statement that allowed it to bring criminal charges against Criswell. Criswell maintained that the police detective who interviewed the wives used information from Criswell’s internal affairs statement to guide his interviews.

The appeals court remanded the case to the trial court to determine whether the evidence the state intends to present at trial is wholly independent of Criswell’s suppressed statement. The trial court is to conduct a “Kastigar hearing” during which it closely examines whether any portions of the statements given by the wives or any other evidence was derived, directly or indirectly, from Criswell’s statement.

 

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