Court Finds Garrity Offers No Protection For Lying During IA Interviews
September 14, 2022 | Travis Vernier
A police officer with the Wilmington, Delaware Police Department shot a fleeing carjacking suspect in 2019. During the investigation into the shooting, the officer, James MacColl, handed his gun over for testing. The ballistic were results were startling. The groves on test rounds did not match those recovered from the scene. Further inspection showed the barrel was not department-issued.
Suspecting officer MacColl had switched the gun barrel after the shooting, the department launched an internal affairs investigation. During an interview with the officer, the investigators gave MacColl a "reverse Garrity" warning, ordering him to answer all questions or face possible termination.
MacColl denied switching the barrel after the shooting and claimed he replaced it a year before to improve accuracy. He then produced a barrel that he said was the original. MacColl struggled to provide consistent answers about his whereabouts after the shooting, including an unsupervised trip to the department's weapons locker.
MacColl was later indicted for providing a false statement to police, evidence tampering, and official misconduct. MacColl moved to dismiss the criminal charges and exclude his interview states, asserting that the rule in Garrity v. New Jersey barred the state from prosecuting him for any of his incriminating statements in the interview.
A Delaware trial court disagreed and found Garrity parallels the Fifth Amendment. Since the Fifth Amendment does not protect against perjury, the court reasoned that Garrity does not protect against false statements. The court warned that Garrity is not a license to lie and only immunizes truthful statements made by officers under threat of termination.
“False statements are not considered ‘coerced’ under the Fifth Amendment or Garrity. As a result, false statements are not immune to charges based on the statements’ falsity even when an officer makes the statements between the ‘rock’ of self-incrimination and the ‘whirlpool’ of termination," the court said.
The court concluded, "Because his statements may be false, the State is permitted under Garrity to use his statements against him to prove perjury, obstruction, and public corruption. MacColl’s statements are admissible and not privileged.”
Case: Delaware v. MacColl, 2022 WL 2388397 (Del. Super. 2022)
