People of Michigan v. William Little
People of Michigan v. William Little
Opinion of the Court
In these three consolidated cases, we address the difficult question of whether defendants’ false statements made while serving as law enforcement officers during an internal affairs investigation can be used against them in criminal proceedings. We conclude that under the disclosures by law enforcement officers act (DLEOA), MCL 15.391 et seq., false or inaccurate information cannot be used against a law enforcement officer in subsequent criminal proceedings. To hold otherwise would defeat the Legislature’s stated intent to preclude the use of “any information,” MCL 15.393, a law enforcement officer is compelled to provide “under threat of. . . any . . . employment sanction,”
I. BASIC PACTS AND PROCEEDINGS
This case arises out of a disturbing encounter between Dajuan Hodges-Lamar and defendants, who at the time were police officers for the city of Detroit. While on duty in November 2009, defendant Hughes approached Hodges-Lamar while he was seated in a car at a gas station. Hughes initially appeared to question Hodges-Lamar, but quickly proceeded to assault him while defendants Harris and Little, who were also on duty, stood by and did nothing to stop the
The OCI presented defendants with an advice-of-rights form drafted by the Detroit Police Department. In relevant part, the form broadly stated:
4. If I refuse ... to answer questions ... I will be subject to departmental charges which could result in my dismissal from the police department.
5. If I do answer. . . neither my statements or any information or evidence which is gained by reason of such statements can be used against my [sic] in any subsequent criminal proceeding.
The language of this form, like the language of DLEOA, did not expressly require truthful answers or truthful statements.
It is my belief... that this Statement and the Preliminary Complaint Report will not and cannot be used against me in any subsequent proceedings other than disciplinary proceedings within the confines of the Department itself. For any and all other purposes, I hereby reserve my Constitutional rights to remain silent under the FIFTH and FOURTEENTH AMMENDMENTS [sic] to the UNITED STATES CONSTITUTION, and Article I, Section 17 of the MICHIGAN CONSTITUTION.
The video recording is wholly at odds with the statements provided by defendants. The prosecutor charged Hughes with common-law felony misconduct in office, MCL 750.505, misdemeanor assault and battery, MCL 750.81, and obstruction of justice, also under MCL 750.505. Defendants Harris and Little were each charged with one count of common-law obstruction of justice, MCL 750.505. The obstruction-of-justice charges were based on allegations that the officers lied during the initial investigation.
Defendants brought motions in district court to dismiss the obstruction-of-justice charges.
The prosecution filed applications for leave to appeal in the Court of Appeals with regard to all three defendants. In a published opinion, a divided panel reversed the lower courts and reinstated the obstruction-of-justice charges.
Judge WILDER dissented from the majority’s determination that false statements fall outside the DLEOA’s scope of protection. Relying on the plain meaning of the words of the act, Judge WILDER reasoned that the protection granted law enforcement officers under the DLEOA applies to all information garnered from an officer during a compulsory internal police investigation.
Defendants filed separate applications for leave to appeal in this Court, each arguing that the Court of Appeals majority erred by concluding that the DLEOA’s scope of protection did not encompass defendants’ false statements. On February 4, 2015, we granted the applications, directing the parties to brief “whether the Disclosures by Law Enforcement Officers Act, MCL 15.391, et seq., precludes the use of false statements by a law enforcement officer in a prosecution for obstruction of justice f.]”
II. STANDARD OF REVIEW
We review de novo constitutional issues and matters of statutory interpretation.
III. ANALYSIS
We must determine whether Michigan law provides these defendants with more protections than those provided under the Fifth Amendment of the United
An involuntary statement made by a law enforcement officer, and any information derived from that involuntary statement, shall not be used against the law enforcement officer in a criminal proceeding.
“Involuntary statement” means information provided by a law enforcement officer, if compelled under threat of dismissal from employment or any other employment sanction, by the law enforcement agency that employs the law enforcement officer.[15 ]
The prosecution argues this language does not preclude the use in later criminal proceedings of false or misleading information obtained through a Garrity hearing. The prosecution characterizes the language as nothing more than a codification of the Garrity rule as it has been developed through federal caselaw. Thus, the prosecution argues that the DLEOA only provides the protection afforded under the Fifth Amendment. Because the Supreme Court of the United States has made it clear that the Fifth Amendment grants a privilege to remain silent without consequence, but “does not endow the person who testifies with a license to commit perjury,”
The plain language of the DLEOA controls our resolution of this dispute and compels us to agree with defendants. Applying traditional principles of statutory construction to the language of the DLEOA, we must conclude that the act sweeps within its scope the false statements offered by defendants. While we may question the Legislature’s decision to offer such unqualified protections, we are obligated to respect that
A. THE DLEOA’S PROTECTIONS REACH BOTH TRUE AND FALSE STATEMENTS
Our primary focus in this case—and all cases in which we are called upon to interpret a statute—is the language of the statute under review. The words of the statute provide the best evidence of legislative intent and the policy choices made by the Legislature.
The Legislature chose to use broad language in the DLEOA. The act prohibits any information derived from an involuntary statement from being used against the officer in a criminal proceeding
The word “information” is not defined in the statute, but dictionaries define the word broadly as “knowledge communicated or received concerning a particular fact or circumstance”;
We may even conclude that “knowledge” in its primary sense encompasses something that is true. But the statute nowhere uses the term “knowledge.” Instead, it protects “statements,” which no one disputes may be false and are statutorily defined as “information.” The critical inquiry is not whether “knowledge”
Keeping in mind that we must interpret the word “information” as used in the DLEOA “according to the common and approved usage of the language,”
The dissent claims that, in ordinary usage, “we should not think of someone who provided inaccurate statements as having imparted ‘knowledge’ or ‘infor
To the contrary, examination of the Legislature’s use of “information” in other statutes that existed at the time the DLEOA was enacted leaves no doubt that the unmodified term is properly construed to apply to all “information,” whether true or false. In the years leading up to enactment of the DLEOA, the Legislature frequently modified the word “information” with the word “truthful” when it intended to reach only truthful information. Such an express limitation, found in a number of other statutes, including in statutes involving immunity or compelled statements,
The presence of the word “truthful” in these statutes is linked to this Court’s ruling in People v Mclntire
The Legislature clearly knows how to limit information based on its veracity when such a limitation is important to conveying its intent. It did so in a number of other statutes it enacted or amended after McIntire, but it chose not to do so in the DLEOA, even though the Legislature had the benefit of Mclntire when it enacted the DLEOA in 2006. We cannot overlook this choice or refuse to give it effect.
Applying this interpretation of the DLEOA’s plain language, the obstruction-of-justice charges brought against defendants must be dismissed. Defendants provided statements regarding their encounter with Mr. Hodges-Lamar under threat of termination; these statements, though false, are protected by the DLEOA and, therefore, cannot be used against defendants in a criminal proceeding. There is no dispute that defendants’ statements provided the only basis for charging them with obstruction of justice and that if this evidence is inadmissible, the charges must be dismissed. According to the Court of Appeals majority, however, this outcome must be rejected because it is “wholly contrary to the Legislature’s purpose in enacting the [DLEOA],” which “was to create a mechanism for facilitating internal police investigations and to provide an incentive for officers who cooperate by providing needed facts.”
For the reasons discussed in this opinion, we discern from the plain language of the DLEOA a legislative intent to protect all Garrity statements, regardless of their veracity. And while there may be ample room to question the wisdom of such unqualified statutory protections, we see no principled basis for this Court to ignore or reject the Legislature’s enactment of them.
We do not view recognition of these unqualified protections as absurd or flatly at odds with the purpose of the DLEOA. There is seemingly no dispute that the protections offered by the DLEOA are intended to encourage and facilitate officers’ participation in internal investigations, with the goal of rendering those investigations more fruitful and effective. As the plain language of the DLEOA makes clear, the Legislature deemed this purpose best served by not limiting the statute’s protections only to statements that are true. Regardless of whether we agree with this policy determination, we can conceive of reasons for it. The Legislature may very well have viewed the benefit of such a limitation—namely, the ability to criminally prosecute officers for lies told during an internal investigation—as outweighed by
*358 [I]n our democracy, a legislature is free to make ineffica-cious or even unwise policy choices. The correction of these policy choices is not a judicial function as long as the legislative choices do not offend the constitution. Instead, the correction must be left to the people and the tools of democracy: the ballot box, initiative, referendum, or constitutional amendment.[56 ]
This statement applies with equal force in the present case. The plain language of the DLEOA protects all statements given by officers under compulsion. This choice may seem odd, or reflective of questionable or even bad public policy, but it was the Legislature’s choice to make. We are not empowered to displace what the law actually provides with a judicial preference for what we believe it should provide.
IV. CONCLUSION
In sum, the Legislature chose not to protect only truthful information when it enacted the DLEOA. This is demonstrated by the plain language of the statute when contrasted with the Legislature’s known capacity to expressly limit the word “information” based on veracity in other statutes when such a limitation is critical to the Legislature’s intent. Accordingly, we must conclude that the DLEOA prohibits the use of an officer’s Garrity statement, even if false, in a criminal proceeding, including one for perjury or obstruction of justice. The Court of Appeals erred by concluding otherwise. We reverse the judgment of the Court of Appeals to the extent it held that, under the DLEOA, a law enforcement officer’s involuntary statement could be used against him or her in a criminal proceeding if the statement was false. We reinstate the orders en
The DLEOA does not provide law enforcement officers with immunity. It only prevents a law enforcement officer’s “involuntary” statements from being used against the officer in a criminal prosecution. MCL 15.391(a); MCL 15.393. A law enforcement officer may be prosecuted for criminal conduct based on evidence other than involuntary statements provided by the officer during an internal inquiry. In the present cases, defendant Hughes is subject to charges independent of the obstruction-of-justice charge that stems from his statement. And while we express no opinion regarding the validity of other charges that could have been asserted against defendants Harris and Little, we note that the Michigan Legislature has made it unlawful for a public official to willfully neglect one’s duty. MCL 750.478.
The Supreme Court of the United States held in Garrity v New Jersey, 385 US 493, 500; 87 S Ct 616; 17 L Ed 2d 562 (1967), that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office .. ..” A hearing in which a law enforcement officer is called on to make a statement under threat of an employment sanction has become known as a “Garrity hearing,” and the statement provided under that threat, a “Garrity statement.” It was at a Garrity hearing that each defendant provided the Garrity statements that led to the common-law obstruction-of-justice charges at issue here.
Recognizing that the rights granted defendants by the Detroit Police Department in its advice-of-rights form are extremely broad, this Court asked the parties to brief a question not previously raised by either party: “whether the [advice-of-rights form] signed by the defendants bar[s] the use of their statements in a criminal prosecution as violative of state or federal rights against self-incrimination.” People v Harris, 497 Mich 958 (2015). We need not address this issue because the case is fully resolved under the DLEOA.
The video showed defendant Hughes approach Hodges-Lamar’s vehicle while defendants Harris and Little assumed positions at the rear of the vehicle and the passenger door. Hughes pulled Hodges-Lamar out of the vehicle by his collar, slammed him against the car, and searched him. Meanwhile, Harris and Little had moved closer to Hughes and Hodges-Lamar. Hughes pushed Hodges-Lamar toward Harris and Little. Finally, Hughes can be seen striking Hodges-Lamar with an open hand in the throat, punching him again, pushing him to the ground, picking him up by the collar several times, slamming him onto the car, and pushing him back toward Harris and Little. Afterward, Hodges-Lamar was issued a citation for driving without proof of insurance.
Defendant Hughes did not challenge the bindover regarding his common-law felony misconduct in office and misdemeanor assault and battery charges. As a result, those charges are not at issue on appeal.
People v Hughes, 306 Mich App 116; 855 NW2d 209 (2014).
People v Allen, 15 Mich App 387, 396; 166 NW2d 664 (1968).
Hughes, 306 Mich App at 128.
Harris, 497 Mich 958.
People v McKinley, 496 Mich 410, 414-415; 852 NW2d 770 (2014).
See Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964), which applied the Fifth Amendment protection against self-incrimination to the states through the Fourteenth Amendment.
Many cases have developed Garrity into the rule as it is understood today. As is particularly relevant to this opinion, the Supreme Court of the United States has clarified, since Garrity, that its interpretation of the Fifth Amendment only applies to truthful statements. See, e.g., United States v Wong, 431 US 174; 97 S Ct 1823; 52 L Ed 2d 231 (1977); United States v Apfelbaum, 445 US 115; 100 S Ct 948; 63 L Ed 2d 250 (1980).
As the Court of Appeals correctly observed, however, Michigan caselaw has not expressly kept pace with this federal development of the Garrity rule. The last published authority on the topic came from Allen, 15 Mich App 387, which concluded that Garrity applies to false statements; Allen was not directly repudiated by a Michigan court until the Court of Appeals’ opinion in this case. The parties do not challenge this repudiation, and, given the developments in Garrity jurisprudence in the time since Allen was issued, we see no reason to disturb it.
MCL 15.391(a).
Wong, 431 US at 178 (citation and quotation marks omitted).
White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979).
Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993).
People v Zajaczkowski, 493 Mich 6, 13; 825 NW2d 554 (2012).
MCL 15.393.
MCL 15.395.
See, e.g., MCL 780.702(3); MCL 750.157; MCL 750.453.
Random House Webster’s College Dictionary (2003).
1 Shorter Oxford English Dictionary (6th ed).
Merriam-Webster’s Collegiate Dictionary (11th ed).
See Random House Webster’s College Dictionary (2003) (defining “intelligence” as “information received or imparted; news” and defining “news” as “a report of a recent event; information”).
MCL 8.3a.
State v Rasabout, 2015 Utah 72, ¶ 57; 356 P3d 1258 (2015) (Lee, A.C.J., concurring in part). Linguists call this type of analysis corpus linguistics, but the idea is consistent with how courts have understood statutory interpretation. For instance, the United States Supreme Court has looked to Westlaw and Lexis databases to examine how words are used in ordinary English when examining how Congress intended a particular word or phrase. See Texas Dep’t of Housing & Community Affairs v Inclusive Communities Project, Inc, 576 US _, _; 135 S Ct 2507, 2534; 192 L Ed 2d 514 (2015) (Auto, J., dissenting); Muscarello v United States, 524 US 125, 129; 118 S Ct 1911; 141 L Ed 2d 111 (1998).
The Corpus of Contemporary American English contains over 520 million words from 220,225 texts, spread evenly among a 25-year period, 1990-2015. The texts include transcripts of live television broadcasts, newspapers, magazines, academic journals, and fiction. Corpus of Contemporary American English, Texts chttps:// corpus.byu.edu/coca/help/texts.asp> (accessed June 6, 2016) [https:// perma.cc//E77D-97XR].
Mouritsen, Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning, 13 Colum Sci & Tech L Rev 156, 202 (2012).
Post at 366.
In conducting a COCA search, the word “accurate” is the most common adjective collocated with “information” to bear a meaning that refers to truth or falsity. The words “false” and “inaccurate” are also commonly collocated with “information.” The collocation search for “information” is available at Corpus of Contemporary American English, “Information” Frequency <http://eorpus.byu.edu/coca/?c=coc&q= 47913597> (accessed June 6, 2016).
See Hard Cases and Hard Data, 13 Colum Sci & Tech L Rev at 197. This is known as a concordance search. After running a collocation search, a user can retrieve the results of a concordance search by navigating to a collocated word and examining each listing in its full context.
For example, news stories from 2006—the year the Legislature enacted the DLEOA—describe “heightened publicity about false information on” the Internet and market analysts “who say they witnessed. fellow employees allowing hedge fund clients ... to add false or misleading information” to investment reports. Hafher, Growing "Wikipedia Refines Its ‘Anyone Can Edit’ Policy, New York Times (June 17, 2006); Masters, 2 Firms Claim Conspiracy in Analyst Reports, The Washington Post (April 26, 2006).
The fact that “information” is often used without a modifying adjective to distinguish its veracity does not, as argued by the dissent, indicate that the word “information” connotes the conveyance of only truthful information. The absence of a modifying adjective around the word is immaterial; the word is used to describe perceptions about the world around us, which may be “true, false, and in-between.” Schieffer,
We see little interpretive import in comparing “information” with “misinformation” and, in light of the definitions discussed in this opinion, are inclined to agree with Judge Wilder’s dissent that the latter is merely a subset of the former. Indeed, as already explained, a collocation and concordance search on COCA demonstrates that the word “information” is often modified by words connoting veracity, such as “accurate.”
In addition to MCL 780.702 and MCL 750.157, discussed subsequently in the main text of this opinion, see, e.g., MCL 750.453 (“Truthful testimony, evidence, or other truthful information compelled under this section and any information derived directly or indirectly from that truthful testimony, evidence, or other truthful information shall not be used against the witness in a criminal case, except for impeachment purposes or in a prosecution for pequry or otherwise failing to testify or produce evidence as required.”); MCL 29.7(4)
See also MCL 333.17014 (stating that certain informed consent statutes are designed to provide “objective, truthful information”); MCL 400.111b(20) (requiring certain professionals to provide “truthful information” about their qualifications).
Other statutes do not modify the word “information” with “truthful,” but still suggest that “information” has no inherent connotation of veracity. See, e.g., MCL 423.452(b) (denying a presumption of actions in good faith to employers who disclose employee information “with a reckless disregard for the truth”); MCL 380.1230b (same quoted language as MCL 423.452(b)); MCL 750.411s(8)(i) (“ ‘Post a message’ means . . . communicating or attempting to . . . communicate information, whether truthful or untruthful, about the victim.”); MCL 449.20 (requiring that “[p]artners shall render on demand true and full information of all things affecting the partnership to any partner or the legal representative of any deceased partner or partner under legal disability”); MCL 449.1305(2) (setting forth the right of limited partners to “[o]btain from the general partners, from time to time, upon reasonable demand . . . true and full information regarding the state of the business and financial condition of the limited partnership”); MCL 324.5507(l)(e) (requiring that a certain application be accompanied by a certification “statfing] that, based on information and belief formed after reasonable inquiry, the statements and information in the application are true, accurate, and complete”); MCL 460.1093(9) (requiring that a certain report “shall be accompanied by an affidavit from a knowledgeable official of the customer that the information in the report is true and correct to the best of the official’s knowledge and belief’).
Correspondingly, as Judge Wilder observed in dissent, the Legislature has frequently modified “information” with the adjectives “misleading” or “inaccurate” when the Legislature only intended to reach false information. See, e.g., MCL 769.34(10); MCL 750.492a(l); MCL 791.235(l)(b). We agree with Justice Maekman that the use of such modifiers in other statutes does not alone lead to the conclusion that the word “information,” as used in the DLEOA, includes both true and false
MCL 780.702(3) (emphasis added).
Compare 1968 PA 289, § 2, with 1999 PA 249, § 2.
Emphasis added.
People v McIntire, 461 Mich 147; 599 NW2d 102 (1999).
MCL 767.6, as amended by 1951 PA 276.
McIntire, 461 Mich at 164 (citation and quotation marks omitted).
Id. at 153 (citation and quotation marks omitted).
See, e.g., Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993) (“Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.”); Paselli v Utley, 286 Mich 638, 643; 282 NW 849 (1938) (“This court cannot write into the statutes provisions that the legislature has not seen fit to enact.”).
In his dissent, Justice Makkman questions our reliance on Mclntire by suggesting that Mclntire has since been rendered moot. We find no support for that suggestion. To the contrary, McIntire guides our decision by interpreting a similar statute. The McIntire Court recognized—as we do here—that a court is not free to rewrite a statute because the end result may be subjectively unpalatable and that “the object of judicial statutory construction is not to determine whether there are valid alternative policy choices that the Legislature may or
This Court’s decision in Mclntire coupled with the unique history of immunity statutes in Michigan leads us to the conclusion that the DLEOA protects both true and false statements. The dissent would have us abandon Mclntire in favor of the federal rule articulated in Glichstein v United States, 222 US 139, 142; 32 S Ct 71; 66 L Ed 128 (1911). Whatever the merits of that rule, the existence of McIntire at the time the DLEOA was enacted provides us great insight into the intent of the Legislature. Accordingly, we see no reason to abandon Mclntire now. See Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000). We nonetheless recognize that Mclntire guides us in the limited and unique area of immunity-related statutes, and we express no opinion whether other statutes that incorporate the word “information” in an entirely different context outside that of immunity and compulsory statements might be interpreted differently.
In urging against this result, the prosecution contends that the DLEOA’s legislative history makes clear that MCL 15.393 was meant to codify nothing more than the Fifth Amendment protections recognized by Garrity and its federal progeny—a contention Justice Markman also notes. We find this line of argument unavailing for several reasons. First, for the reasons already discussed, the plain language of MCL 15.393 controls our analysis and belies this interpretation, making clear that the statute’s protections extend beyond those presently guaranteed by the Fifth Amendment. We see no need or place for legislative history in this analysis. Second, the materials offered by the prosecution are legislative analyses, which this Court has recognized to be of little use in discerning the intent of the Legislature. See Johnson v Recca, 492 Mich 169, 188; 821 NW2d 520 (2012) (stating that a house legislative
Although the parties did not address the question, Justice Makkman also offers another interpretive avenue for constraining the scope of the DLEOA’s protections to those constitutionally provided under Garrity and its federal progeny: he suggests that “truthful” need not be included with “information” in the DLEOA because, as federal Fifth Amendment jurisprudence has held, an individual cannot be compelled to lie; accordingly, even if a lie can be deemed “information,” lies cannot be considered an “involuntary statement” or “compelled” within the meaning of the DLEOA. While we recognize the intuitive appeal of this reasoning, we find ourselves unable to square it with Mclntire and the numerous instances, previously cited in this opinion, in which the Legislature has described “information” as both “truthful” and “compelled.” See MCL 780.702(3) (referring to “[t]ruthful testimony or other truthful information compelled under the order granting immunity”); MCL 750.157 (referring to “[tjruthful testimony, evidence, or other truthful information compelled under this section”). If nothing else, these instances make clear that, by the time the DLEOA was enacted, the Legislature was not assuming that the term “compelled” would be inherently limited to its Fifth Amendment meaning or would express an intent to reach only truthful statements. Nor do we discern such a limitation in the term itself or view false statements as necessarily
Hughes, 306 Mich App at 130.
Post at 385. In so stating, Justice Markman implicitly suggests that our interpretation of the DLEOA renders an absurd result. A similar argument was raised in Mclntire and was rejected by this Court.
McIntire, 461 Mich at 153 (citation and quotation marks omitted; alterations in original).
As noted earlier, the DLEOA not only prohibits the use of involuntary statements in criminal proceedings, but also restricts their public disclosure. Complications could arise from a nondisclosure rale that turns on a determination of truth; who, for instance, would decide whether an officer’s statement was truthful? The DLEOA provides no insight into how such a rule might be implemented.
Allen, 15 Mich App at 393.
We also note that the DLEOA does not purport to wholly foreclose criminal prosecution for an officer’s conduct that has been the subject of internal inquiry; it simply prohibits using in that prosecution the officer’s “involuntary statement” and “any information derived” therefrom. MCL 15.393.
McIntire, 461 Mich at 159.
Id. (quotation marks and citations omitted).
Concurring in Part
(concurring in part and dissenting in part). I agree with the majority opinion to the extent that it holds that the Fifth Amendment does not preclude the use of false statements by a law enforcement officer in a prosecution for obstruction of justice. However, I respectfully disagree with it to the extent that it holds that the disclosures by law enforcement officers act (DLEOA), MCL 15.391 et seq., precludes the use of false statements by a law enforcement officer in a prosecution for obstruction of justice. That is, contrary to the majority, I agree with the Court of Appeals that false statements do not constitute “information” and therefore are not protected by the DLEOA, which only protects “information.” Accordingly, I would affirm the judgment of the Court of Appeals.
I. PACTS AND HISTORY
The defendant police officers, Sean Harris, William Little, and Nevin Hughes, were charged with obstruction of justice for lying during an internal investigation of Hughes, who had assaulted Dajuan Hodges-Lamar. The assault was video recorded by a security camera at a gas station.
The district court dismissed the obstruction-of-justice charges on the basis that defendants’ statements to the investigating officer could not be used against them under the DLEOA and the Fifth Amendment,
II. ANALYSIS
A. THE FIFTH AMENDMENT
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself. . . .” US Const, Am V (emphasis added); see also Const 1963, art 1, § 17.
However, in United States v Wong, 431 US 174, 179; 97 S Ct 1823; 52 L Ed 2d 231 (1977), the United States Supreme Court held that “the Fifth Amendment privilege does not protect perjury . . . .” Instead, “ [i] t grants a privilege to remain silent without risking contempt, but it ‘does not endow the person who testifies with a license to commit perjury.’ ” Id. at 178 (citation omitted). Therefore, the Court held that the defendant’s false testimony was admissible in a subsequent perjury trial even though the defendant had provided the false testimony without being informed of her Fifth Amendment right to remain silent.
Similarly, in United States v Apfelbaum, 445 US 115, 117, 131; 100 S Ct 948; 63 L Ed 2d 250 (1980), the United States Supreme Court held that the “proper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely,” and thus “neither the [federal use-immunity] statute[
In light of this caselaw, it is clear that the Fifth Amendment does not protect a defendant from a subsequent prosecution for perjury or obstruction of justice predicated on false statements that the defendant made after having been granted immunity from prosecution.
[t]he Fifth Amendment did not bar the admission of defendants’ false statements in the instant prosecutions for obstruction of justice. The district court abused its discretion by relying on the Fifth Amendment to exclude defendants’ false statements from evidence. [Hughes, 306 Mich App at 128.]
B. DLEOA
The Court of Appeals also held that the DLEOA does not bar admission of defendant’s false statements, and again I agree. MCL 15.393 of the DLEOA provides:
*365 An involuntary statement made by a law enforcement officer, and any information derived from that involuntary statement, shall not be used against the law enforcement officer in a criminal proceeding.[9 ]
1. “INFORMATION”
MCL 15.391 defines the term “involuntary statement” as “information provided by a law enforcement officer, if compelled under threat of dismissal from employment or any other employment sanction. . . .” (Emphasis added.) “Information” is defined as “1. knowledge communicated or received concerning a particular fact or circumstance; news. 2. Knowledge gained through study, communication, research, instruction, etc.; data; facts.” Random House Webster’s College Dictionary (1992).
The phrase “involuntary statement” is defined as “information provided by a law enforcement officer, if compelled under threat of dismissal from employment or any other employment sanction, by the law enforcement agency that employs the law enforcement officer.” MCL 15.391(a) (emphasis added). But when an officer is compelled to make a statement during an internal investigation, and provides only misinformation and lies, he or she has not provided any “information” at all within the commonly understood meaning of that word. Among other things, “information” is defined as “knowledge communicated or received concerning a particular fact or circumstance.” Random. House Webster’s College Dictionary (1997). The word “knowledge,” in turn, is defined as “the body of truths or facts accumulated in the course of time.” Id. Because an officer’s lies do not impart any truths or facts, they necessarily do not constitute “information.” See MCL 15.391(a).[12 ] In other words, an officer’s lies and*367 false statements do not qualify as “involuntary state-mentfe]” under MCL 15.393, and consequently may be used as evidence in a subsequent criminal prosecution. [Hughes, 306 Mich App at 129-130.]
Judge WILDER concurred with the Court of Appeals majority regarding the Fifth Amendment issue, but dissented on the statutory issue on the basis that lies constitute “information.” As already explained, I agree with the Court of Appeals majority that lies do not constitute “information” as that term is commonly understood.
Judge WILDER and the majority in this Court also rely on the fact that a number of Michigan statutes refer to “inaccurate” or “misleading” information. See, e.g, MCL 769.34(10); MCL 750.492a(l); MCL 168.467b(6); MCL 487.2140(2); MCL 791.235(l)(b). However, I believe that this actually supports the Court of Appeals majority’s conclusion that “information” signifies truthful information because in those unusual circumstances in which the Legislature is intending to refer to untruthful information, it expressly refers to “inaccurate” or “misleading” information. That is, the Legislature recognizes that when it intends to refer to untruthful information, it needs to supply a modifier to precede “information” because, when unmodified, “information” signifies truthful information.
The majority in this Court concludes that because the Legislature has modified the term “information” with the adjective “truthful” in other statutes, but not the instant one, it must have intended the term “information” in the instant statute to include both truthful and false information. That is, the Legislature obviously knew how to limit “information” to only “truthful information,” and it chose not to limit “information” in that manner in the instant statute. Again, I respectfully disagree. The majority cites nine statutes that contain the phrase “truthful information.”
The final statute the majority relies on, MCL 333.17014, a statute within the Public Health Code, sets forth the legislative findings that supported the Legislature’s enactment of MCL 333.17015 and MCL 333.17515. Legislative findings do not constitute substantive law. See Nat’l Pride at Work, Inc v Governor, 481 Mich 56, 79 n 20; 748 NW2d 524 (2008). Although the legislative-findings statute, MCL 333.17014, on one occasion refers to “truthful information,” neither of the substantive statutes, MCL 333.17015; MCL 333.17515, refers to “truthful information,” even though one of the substantive statutes, MCL 333.17015, repeatedly refers to “information,” and, given the context, it is clear that the statute is referring to “truthful information.” Furthermore, although the legislative-findings statute itself repeatedly uses
The majority thus has identified nine statutes that use the phrase “truthful information,” and from this the majority concludes that “information” unmodified by “truthful” must include both truthful and false information. However, the majority does not take into account that the Legislature has used the word “information” in 4,849 statutes, and only nine of these statutes modify “information” with “truthful.” Does the majority truly believe that in the other 4,840 statutes in which the Legislature used “information” it was referring to both true and false information?
Although the Legislature added “truthful” before “information” in a handful of statutes following McIntire, the Legislature likely did not believe it needed to add “truthful” before “information” when it enacted the DLEOA in 2006 (seven years after McIntire was decided) because: (a) the DLEOA was viewed as a codification of Garrity and its progeny, and it is clear that false statements are not protected under those decisions; and (b) the Legislature almost certainly perceived the word “information” as only connoting truth
The majority’s reliance on McIntire for anything other than explaining why the Legislature amended MCL 767.6 and similar statutes to add the word “truthful” is misplaced. As the majority explains, McIntire involved the interpretation of MCL 767.6, which at the time provided that “[n]o person required to answer such questions shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him.” MCL 767.7, as amended by
I agree with the majority that McIntire’s actual holding has not been overruled by this Court and presumably never will be because, as already discussed, the statute at issue has since been amended in such a way that the issue addressed in McIntire will not arise again. The majority seems to believe that this means that we are forevermore encumbered with McIntire’s holding that a person’s statements do not have to be truthful in order for that person to be entitled to immunity. Apparently, the majority believes that to be the case even though McIntire has been superseded by statute and the Legislature has employed statutory language that is entirely different from the language that was at issue in McIntire. Importantly, the statute at issue in McIntire did not use the word “information,” and Mclntire thus did not address its meaning, but the majority uses McIntire to support its conclusion that “information” refers to both true and false statements. However, because the
The majority asserts that “the existence of McIntire at the time the DLEOA was enacted provides us great insight into the intent of the Legislature” and “we see no reason to abandon McIntire now.” However, given that McIntire did not interpret the term “information” as we are called upon to do now, and given that McIntire has already been emphatically superseded by legislative enactments, see note 19 of this opinion, I am baffled as to what “great insight into the intent of the Legislature” the majority has derived from McIntire that I am supposedly urging it to “abandon.” If this “great insight” is this Court’s obligation to adhere to the plain language of a statute, I am hardly urging the majority to abandon this. Indeed, it is precisely the plain language of the DLEOA that causes me to conclude that the act does not protect false statements. That is, because the DLEOA only protects “information,” and because the plain meaning of the term “information” does not encompass
2. “COMPELLED”
Additionally, MCL 15.391 defines the term “involuntary statement” as “information provided by a law enforcement officer, if compelled . . . .” (Emphasis added.) Not only are lies not “information,” but they are also not “compelled.”
As previously noted, the Fifth Amendment provides that no person “shall be compelled... to be a witness against himself. ...” US Const, Am V. “The design of the [Fifth Amendment] privilege is . . . to protect [a person] against being compelled to furnish evidence to convict him of a criminal charge.” Brown v Walker, 161 US 591, 605-606; 16 S Ct 644; 40 L Ed 819 (1896). In other words, “the Fifth Amendment privilege speaks only of compulsion[.]” People v Wyngaard, 462 Mich 659,
Pertinent to the instant case, the United States Supreme Court has long recognized that the Fifth Amendment does not endow a person with a license to commit perjury. See Glickstein v United States, 222 US 139, 142; 32 S Ct 71; 56 L Ed 128 (1911) (“[T]he immunity afforded by the constitutional guaranty relates to the past and does not endow the person who testifies with a license to commit perjury.”). In Glick-stein, the Court construed a similar immunity statute that did not contain an exception for perjury.
[T]he statute expressly commands the giving of testimony, and its manifest purpose is to secure truthful testimony, while the limited and exclusive meaning which the contention attributes to the immunity clause would cause the section to be a mere license to commit perjury, and hence not to command the giving of testimony in the true sense of the word.
The argument that because the section does not contain an expression of the reservation of a right to prosecute for*380 perjury in harmony with the reservations in Rev. Stat., § 860, and the act of 1893, therefore it is to be presumed that it was intended that no such right should exist, we think, simply begs the question for decision, since it is impossible in reason to conceive that Congress commanded the giving of testimony, and at the same time. intended that false testimony might be given with impunity in the absence of the most express and specific command to that effect.
Bearing in mind the subject dealt with we think the reservation of the right to prosecute for perjury made in the statutes to which we have referred was but the manifestation of abundant caution, and hence the absence of such reservation in the statute under consideration may not be taken as indicative of an intention on the part of Congress that perjury might be committed at pleasure. [Id. at 143-144.[27 ]
The Court concluded that the statute, in compelling the giving of testimony, did not confer immunity wider than that guaranteed by the Constitution. Id. at 142-144.
I believe Glickstein is instructive in assessing the majority’s argument that the DLEOA includes false statements because the Legislature did not use the term “truthful information.” Glickstein rejected the defendant’s analogous argument that, because the statute in that case did not include a perjury exemption that had been included in other statutes, such an exemption did not exist. Similarly, the Michigan Legislature’s use of “truthful” in other statutes appears at most to only reflect a “manifestation of abundant
Further, although Glickstein did not clearly explain why the Fifth Amendment does not endow a person with a license to commit perjury, it recognized the critical relationship between compelled statements and the truth. The United States Supreme Court expounded on this relationship in United States v Knox, 396 US 77; 90 S Ct 363; 24 L Ed 2d 275 (1969), holding that the Fifth Amendment does not protect perjury because those false statements are not compelled. In Knox, the defendant was indicted for including false, material information in his tax filings. He sought Fifth Amendment protection, arguing that his tax filings were compelled by statute and that, had he not filed truthful and complete forms as required, he would have incriminated himself. Similarly, filing no forms at all would have also subjected him to prosecution. The Court rejected the defendant’s argument, noting that he had “taken a course other than the one that the statute was designed to compel, a course that the Fifth Amendment gave him no privilege to take.” Id. at 82. The Court stated that “when [defendant] responded to the pressure under which he found himself by communicating false information, this was simply not testimonial compulsion.” Id. Similarly, in Wong, 431 US at 178, the Court confirmed that the Fifth Amendment does not condone perjury, emphasizing that “the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury.”
The issue here is whether defendants’ statements were protected by the DLEOA, not the Fifth Amendment. But in the DLEOA, the Legislature used the term “compelled” when providing statutory protection
The government here did not “compel” defendants to lie. Rather, it sought only to “compel” defendants to tell the truth. That defendants chose to provide exculpatory falsehoods, rather than inculpatory truths, resulted in their loss of protection under the Fifth Amendment and MCL 15.393. See Wong, 431 US at 178 (“[E]ven the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury.”).
3. CONTEXT
It must finally be noted that “[a] court does not construe the meaning of statutory terms in a vacuum.” Manuel v Gill, 481 Mich 637, 650; 753 NW2d 48 (2008) (quotation marks and citation omitted). “Rather, we interpret the words in their context and with a view to their place in the overall statutory scheme.” Id. (quotation marks and citations omitted). See also Michigan ex rel Gurganus v CVS Caremark Corp, 496 Mich 45, 59; 852 NW2d 103 (2014) (“Individual words and
*386 We conclude that the Legislature’s manifest intent was to create a mechanism for facilitating internal police investigations and to provide an incentive for officers who cooperate by providing needed facts. The Legislature certainly did not intend to immunize police officers by precluding the use of their lies and false statements in criminal proceedings. Indeed, such a strained construction of MCL 15.393 would be wholly contrary to the Legislature’s purpose in enacting the statute. In sum, the plain language of MCL 15.391(a) establishes that an “involuntary statement” includes only truthful and factual information. Quite simply, when an officer lies, he or she provides no “information.” Accordingly, MCL 15.393 does not preclude the use of the officer’s lies in a criminal proceeding. [Hughes, 306 Mich App at 130.]
Reference to “information provided by a law enforcement officer,” MCL 15.391(a), in exchange for immunity, cannot reasonably be interpreted to mean simply any utterance of words; instead, it must reasonably be interpreted as meaning truthful information. Given that the obvious purpose of the statute at issue is to assist in the discovery of police misconduct, an indispensable element of the induced statement is that it be truthful so that it may—in fact or potentially—assist in such discovery. If the police officers who are questioned are allowed to provide false statements without consequence, i.e., without adversely affecting their guarantee of immunity, not only is the government not assisted in its responsibilities to investigate and punish police misconduct, but it may be affirmatively hindered or obstructed in this regard by the false statements, which indeed is exactly what occurred in the case at hand.
III. CONCLUSION
Because I agree with the Court of Appeals that neither the Fifth Amendment nor the DLEOA forbid the use of a law enforcement officer’s false statements in a subsequent prosecution for obstruction of justice, I respectfully dissent and would affirm the judgment of the Court of Appeals.
Defendants Harris and Little did nothing to aid the victim or to prevent the assault. Defendant Hughes was also charged with misconduct in office and assault and battery arising out of the assault on Hodges-Lamar, but those charges are not the subject of this appeal.
Defendants also signed a reservation-of-rights form, which was similar to the notiflcation-of-constitutional-rights form. Defendants now argue that the waivers they signed bar the use of their statements. However, defendants never made this argument in the lower courts, and this argument, therefore, was not addressed. Because defendants did not preserve this argument below, I would hold that it has been waived. Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (“[A] failure to timely raise an issue waives review of that issue on appeal.”) (citation and quotation marks omitted).
The district court was bound by People v Allen, 15 Mich App 387; 166 NW2d 664 (1968), which held that the Fifth Amendment protects false statements. The Court of Appeals subsequently observed in the instant case that “[g]iven the intervening developments in federal law,.. . the reasoning of Allen cannot stand.” People v Hughes, 306 Mich App 116, 127; 855 NW2d 209 (2014). For the reasons discussed later, I agree.
The parties here do not argue that the Michigan Constitution should be interpreted differently than the United States Constitution. Accordingly, I limit my constitutional analysis to the Fifth Amendment. See People v Wyngaard, 462 Mich 659, 671 n 10; 614 NW2d 143 (2000) (“We confine our analysis to the Fifth Amendment because defendant has not argued that art 1, § 17 provides broader protections.”); see also People v Tanner, 496 Mich 199, 256; 853 NW2d 653 (2014) (“Although this Court need not interpret a provision of our Constitution in the same maimer as a similar or identical federal constitutional provision, we are persuaded in the present instance, on the basis of our examination of Article 1, § 17, that the United States Supreme Court’s interpretation of the Self-Incrimination Clause of the Fifth Amendment in [Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986)] constitutes the proper interpretation of Article I, § 17 as well.”).
However, “given adequate immunity, the State may plainly insist that employees either answer questions under oath about the performance of their job or suffer the loss of employment.” Lefkowitz v Turley, 414 US 70, 84; 94 S Ct 316; 38 L Ed 2d 274 (1973). Such statements are now sometimes referred to as “Garrity statements.”
More specifically, the Court held that “a witness who, while under investigation for possible criminal activity, is called to testify before a grand jury and who is later indicted for perjury committed before the
The federal use-immunity statute, 18 USC 6002, provides that when a witness is compelled to testify over his or her claim of a Fifth Amendment privilege, “no testimony.. . may be used against the witness in any criminal case, except a prosecution for peijury, giving a false statement, or otherwise failing to comply with the order.”
Indeed, defense counsel for defendant Little seemed to concede this at oral arguments before this Court. Chief Justice Young asked defense counsel, “The protection afforded by Garrity did not extend to lies made as a Garrity statement, correct?” Defense counsel responded, “Absolutely correct].]”
In addition, MCL 15.395 provides, in pertinent part:
An involuntary statement made by a law enforcement officer is a confidential communication that is not open to public inspection. The statement may be disclosed by the law enforcement agency only under 1 or more of the following circumstances:
(a) With the written consent of the law enforcement officer who made the statement.
(b) To a prosecuting attorney or the attorney general pursuant to a search warrant, subpoena, or court order, including an investigative subpoena issued under chapter VIIA of the code of criminal procedure, 1927 PA 175, MCL 767a.1 to 767a.9. However, a prosecuting attorney or attorney general who obtains an involuntary statement under this subdivision shall not disclose the contents of the statement except to a law enforcement agency working with the prosecuting attorney or attorney general or as ordered by the court having jurisdiction over the criminal matter or, as constitutionally required, to the defendant in a criminal case.
Similarly, “inform” means “to give or impart knowledge of a fact or circumstance to” or “to supply (oneself) with knowledge of a matter or subject!.]” Random House Webster’s College Dictionary (1992). Lies do not “impart knowledge.” Indeed, one becomes increasingly less informed
Similarly, ‘knowledgeable” means “well-informed.” Random. House Webster’s College Dictionary (1992). We do not think of someone who knows nothing accurate about a subject as being “knowledgeable” or “well informed” regarding that subject. Accordingly, we should not think of someone who provided inaccurate statements as having imparted “knowledge” or “information” in that regard.
The majority concludes that the definitions of “information” and “knowledge” do not exclude statements that are false. However, all the definitions that the majority relies on do, in my opinion, exclude statements that are deliberately false, such as the ones at issue here.
Even putting aside the dictionary definitions this opinion cites, I do not believe that any ordinary or reasonable meaning of the word “information” includes false statements, and the majority identifies none. Would one person of a hundred taken at random from the streets of any community of this state disagree regarding this entirely ordinary meaning? And would it make the slightest difference whether any of them relied on a collegiate dictionary, a children’s dictionary, a supermarket dictionary, an English-as-a-second-language dictionary, the Oxford English Dictionary, or no dictionary at all?
The majority relies on the Corpus of Contemporary American English (COCA), a truly remarkable and comprehensive source of
See also Random House Webster’s College Dictionary (1992), which defines “mis” as “a prefix applied to various parts of speech, meaning ‘ill,’ ‘mistaken,’ ‘wrong,’ ‘wrongly,’ ‘incorrectly,’ or simply negating: mistrial; misprint; mistrust.”
Similarly, “disinformation” means “false information deliberately and often covertly spread (as by the planting of rumors) in order to
Judge Wilder also relied on the fact that MCL 15.393 refers to “a criminal proceeding,” rather than the criminal proceeding. See MCL 15.393 (“An involuntary statement made by a law enforcement officer .. . shall not be used against the law enforcement officer in a criminal proceeding.”) (emphasis added). However, it would not make any sense for MCL 15.393 to refer to the criminal proceeding because at the time that a Garrity statement is given, there is no criminal proceeding to definitively identify by use of the definite article “the.” Furthermore, the fact that the statute refers to “a criminal proceeding” rather than “the criminal proceeding” simply does not address the question at issue here—whether an officer’s false statements can be used against the officer “in a criminal proceeding.”
These statutes will be discussed in greater detail in the main text of this opinion, but for context, I note that six of the statutes the majority relies on are either in the Michigan Penal Code or the Code of Criminal Procedure, and one is in the Fire Prevention Code. These seven statutes provide that compelled, truthful information “shall not be used against the witness in a criminal case, except for impeachment purposes or in a prosecution for perjury,” with the exception of MCL 750.122(2), which is an exception to the bribery statute that allows a witness to be paid "reasonable costs” to “provide truthful information.” The eighth and ninth statutes relied on by the majority are quite different from the preceding seven statutes. The eighth statute, MCL 400.111b, is part of the Social Welfare Act, and it provides, in pertinent part, that a healthcare “provider shall certify that a claim for payment. .. does not contain untrue, misleading, or deceptive information” and that the "provider shall supply complete and truthful information as to his or her professional qualifications and training. . . .” MCL 400.111b(17) and (20). The ninth statute, MCL 333.17014, is part of the Public Health
McIntire was decided on September 14, 1999, and these statutes were amended on December 28, 1999.
MCL 750.122 was enacted on January 9,2001, and became effective on March 28, 2001.
The majority also suggests that because numerous statutes expressly state that compelled information “shall not be used against the witness in a criminal case, except for impeachment purposes or in a
I recognize that in a few of these statutes the word “information” is modified by other adjectives, such as “inaccurate” or “misleading”; as previously discussed, however, I believe that in the great majority of these statutes “information” is used to mean “truthful information.”
At some juncture after this Court has interpreted words in a highly unusual manner, the Legislature must be allowed again to use words as they are commonly understood by the people whom they represent. That is, it is one thing to say that when, in the ordinary course of statutory interpretation, this Court has interpreted a word, the next time the Legislature uses that same word, it is presumed to mean what we have previously said it means, but it is quite another thing to say that when this Court has interpreted a word in a highly unusual manner, we will presume that whenever that same word is subsequently used by the Legislature, it is presumed to mean what we have previously said it means. After some reasonable duration, we have to assume that when the Legislature uses the word “dogs,” it means “dogs,” and not forevermore “dogs and cats.” And perhaps most importantly, in the final analysis, it is this Court that must adhere to the language of the people and their representatives and not the people and their representatives that must adhere to the language of this Court. It was this Court’s decision in McIntire in 1999 that has now led to the extraordinarily odd circumstance 17 years later—that in order to effectively communicate its intentions, the Legislature apparently must, whenever it seeks to legislate concerning “information,” systematically insert in the law a disclaimer: “provided, however, that the information requested or provided in this statute be truthful.” This Court may understand the point of such language, but others who are governed by this law will only be confused and befuddled.
Defense counsel for defendant Harris admitted this at oral arguments when he stated, “Nobody’s compelled to lie .. . .”
See, e.g., Minnesota v Murphy, 465 US 420, 440; 104 S Ct 1136; 79 L Ed 2d 409 (1984) (holding that because the defendant’s disclosures were not .compelled incriminations, he could not invoke the Fifth Amendment privilege); Miranda v Arizona, 384 US 436, 467; 86 S Ct 1602; 16 L Ed 2d 694 (1966) (“[W]ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.”).
The statute provided, in pertinent part, “ ‘no testimony given by him shall be offered in evidence against him in any criminal proceeding.’ ” Glickstein, 222 US at 140-141 (citation omitted). See also note 21 of this opinion.
This passage suggests that, absent manifest legislative intent to the contrary, statutes compelling the giving of testimony are presumed to require that the testimony be truthful. If such a presumption had been in play in Mclntire, perhaps this Court would have reached a different result.
Other courts have reached the same conclusion.. See, e.g., United States v Thomas, 612 F3d 1107, 1128 (CA9, 2010) (“But [defendant] was not in any way compelled to ‘knowingly giv[e] Grand Jury testimony that was intentionally evasive, false, and misleading’ by virtue of her grand jury subpoena.”) (second alteration in original); United States v
Veal was overruled on other grounds by Fowler v United States, 563 US 668 (2011).
The fact that Garrity statements are not made under oath is immaterial to the Fifth Amendment analysis. Veal, 153 F3d at 1241 (“Like false testimony before a grand jury, the Court has not excluded from criminal liability false statements made to government agents or agencies, whether or not those statements were made under oath.”). See also LaChance v Erickson, 522 US 262, 267; 118 S Ct 753; 139 L Ed 2d 695 (1998) (holding that it was irrelevant that statements were not made under oath for the purpose of criminal culpability for making false statements to government agency investigators).
Cf. Howes v Fields, 565 US _, _; 132 S Ct 1181, 1189; 182 L Ed 2d 17 (2012) (“As -used in our Miranda case law, ‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.”).
Nothing in the way of rational public policy would result from protecting exculpatory falsehoods. By such a conclusion, the government would be unable to obtain information that it needs to uncover police misconduct, and officers who possess such information would be permitted to lie about it without concern for criminal repercussions.
For what it is worth, interpreting MCL 15.393 as providing the same protections as Garrity and its progeny, i.e., as not protecting false statements, is also consistent with House Legislative Analysis, SB 647, December 7, 2006, which states:
The U.S. Supreme Court has already established that involuntary statements made by law enforcement officers during internal investigations cannot be used against the officers in a criminal prosecution. Concerning this matter, the bill would simply codify the federal court ruling. [Emphasis added.]
It is likewise consistent with Senate Legislative Analysis, SB 647, February 20, 2007, which states:
By providing that an involuntary statement made by a law enforcement officer, and any information derived from it, may not be used against the officer in a criminal proceeding, the bill effectively codifies Garrity protections in Michigan statutory law. [Emphasis added.]
Contrary to the majority’s suggestion, by the time that the DLEOA was enacted in 2006, the “Garrity protections” were well understood as excluding protection of false statements. While I recognize the limitations inherent in reliance on legislative analyses as an aid in the construction of a statute, see In re Certified Question, 468 Mich at 115 n 5, it is nonetheless notable when the construction of a statute, reached without reliance on a legislative analysis, conforms fully with such a legislative analysis.
More specifically, the officers’ statements cannot be nsed against them in a criminal proceeding. However, the practical effect of that is almost always going to be the same as immunity, as it was in this case.
Cf. Apfelbaum, 445 US at 132 (Brennan, J., concurring in the judgment) (recognizing that the perjury exception to the Fifth Amendment is based in part on “the simple reality that affording the witness a right to lie with impunity would render the entire immunity transaction futile.”); id. at 135 (Blackmun, J., concurring in the judgment) (“Perjury or the making of false statements under a grant of immunity thus violates a basic assumption upon which the privilege and hence the immunity depend.”).
As one commentator explained:
The state has a strong preference against allowing persons to lie with impunity, for lying prejudices the state in ways that neither silence nor truth-telling does. Silence with impunity may disable the state from acquiring information from a witness, but it has the virtue of leaving the state no worse off than if the witness had never existed. Truth-telling with impunity may*387 disable the state from using a witness’s statements against him criminally, but it enlightens the state and enables the state to use the information for all other purposes. In contrast, lying with impunity leaves the state worse off than it was before. Lying with impunity not only disables the state from using the lies as criminal evidence against the person, but it affirmatively misleads and confuses the state regarding the truth. Not surprisingly, the Court finds no place for lying:
In [the] constitutional process of securing a witnesses] testimony, perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings .... Congress has made the giving of false answers a criminal act punishable by severe penalties; [for] in no other way can criminal conduct be flushed into the open where the law can deal with it. [Westen, Answer Self-Incriminating Questions or Be Fired, 37 Am J Crina L 97, 123-124 (2010), quoting United States v Mandujano, 425 US 564, 576; 96 S Ct 1768; 48 L Ed 2d 212 (1976) (alterations in original).]
The majority asserts that “the protections offered by the DLEOA are intended to encourage and facilitate officers’ participation in internal investigations, with the goal of rendering those investigations more fruitful and effective.” I fail to see how lies render investigations more fruitful and effective. Indeed, I believe that they have the very opposite effect—they hinder and thwart investigations. I do not believe that any reasonable Legislature could conceivably have wished to encourage police officers to lie during an internal investigation or even been disinterested in whether such lies took place. The majority posits that “[n]ot all statements, after all, are clearly true or entirely false, and the Legislature may have concluded that qualifying the DLEOA’s statutory protections
Reference
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- People v. Harris; People v. Little; People v. Hughes
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