Texas Stamp


PD-0845-20 01/14/2021

“When the prosecuting authority is in possession of an immunized statement, does the State bear the burden to demonstrate that the statement was not “used” in any way by the prosecution?”

Oliver was the officer in an officer-involved shooting. The victim died. Hours after the shooting, he sat down with a union attorney and an internal affairs investigator from the Balch Springs Police Department to give a written statement. This statement was made pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967), which provides use and derivative use immunity in exchange for compelled cooperation with an internal investigation. Hours before, the Dallas County Sheriff’s Office agreed to take over the investigation. Shortly after Oliver gave his Garrity statement, he and his attorney met with the lead detective from Dallas S.O. at the scene and gave a statement as he walked them through the event. The internal affairs investigator from Balch Springs was present but did not ask any questions and was too far away to hear any of Oliver’s statements, although he wrote a report based on the walk-through. That investigator also obtained a follow-up Garrity statement from Oliver. The Dallas District Attorney’s Office’s Public Integrity Unit (PIU) obtained a copy of the Balch Springs file which was read only by Lieutenant Rendon, an officer who “scrubbed” it of any Garrity material and was then walled off from the investigation.

Oliver moved to suppress his Garrity statements and evidence derived from them, and further alleged that his indictment should be dismissed and the Dallas DA’s Office recused as a result. At the hearing, the State’s witnesses of the shooting and walk-through all said their testimony was based on personal knowledge from the respective events. The chief of the PIU testified that he was unaware any Garrity material existed until the issue was raised by Oliver. The trial court concluded that the “walk-through” statement was not a Garrity statement. It also concluded that Oliver failed to meet his burden to show the State’s evidence was tainted by exposure to the Garrity material. Oliver denied it was his burden but offered no more evidence. The trial court denied all relief requested.

The court of appeals affirmed. It framed the “taint” analysis in two steps. First, “we ask next whether the defendant carried his burden below to lay a firm foundation—resting on more than mere suspicion—that proffered evidence was tainted by exposure to the immunized statement.” If so, “we determine whether the State proved, by a preponderance of the evidence, that all of its evidence to be used against the defendant proceeded from legitimate independent sources.” It agreed with the trial court that Oliver failed to offer a foundation for his claims.

Oliver argues in his petition that the court of appeals ignored Supreme Court precedent that “imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar v. United States, 406 U.S. 441, 460 (1972). Once it was clear that Garrity material existed and was in the possession of the Dallas DA’s Office, Oliver had no burden. Moreover, he claims, the State “merely succeeded in denying” that its prosecution team used the Garrity material; it did not prove the material played no role, even unintentionally.

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