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Hopp & Flesch11/21/2005
n "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amends. V, XIV, ยง 1; Malloy v. Hogan, 378 U.S. 1, 6 (1964). In addition to protecting a person from being required to testify against herself in a criminal trial, the Fifth Amendment privilege against self-incrimination also allows her to refuse to answer questions in any type of proceeding where her answers might incriminate her in later criminal proceedings. E.g., Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). The privilege is generally not automatically invoked, meaning if one "desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment." Minnesota v. Murphy, 465 U.S. 420, 427 (1984) (quoting United States v. Monia, 317 U.S. 424, 427 (1943)).
However, the Supreme Court has recognized exceptions to the general rule that the Fifth Amendment privilege against self-incrimination is not automatically invoked. One exception to this general rule applies when a suspect gives a confession while in police custody. Id. at 429. A second exception pertains to situations where one is penalized for invoking the privilege in such a way that precludes the choice to remain silent, thus compelling incriminating testimony. Id. at 434.
In Garrity v. New Jersey, the Supreme Court addressed how this second exception arises in cases where public employees are questioned by their employers regarding alleged wrongdoing. 385 U.S. 493 (1967). The Court in Garrity held that when an employee is faced with the choice between forfeiting his job or incriminating himself, his decision to make a statement is not born of "free and rational choice." Id. at 497. Thus, any statements made under such circumstances would be compelled and, under the Fifth Amendment, could not be used in a criminal proceeding.
The Fifth Amendment privilege against self-incrimination as articulated in Garrity, often called "Garrity immunity," differs from an affirmative grant of use immunity by the state. Garrity immunity is a self-executing invocation of the Fifth Amendment privilege against self-incrimination that is triggered by a public employer's actions. When a public employee is unconstitutionally coerced into making a statement under threat of job loss, a court must intervene and grant what amounts to use immunity in order to prevent the person's statements from being used against him in a criminal proceeding in violation of the Fifth Amendment. Hence, while Garrity immunity and state-granted use immunity may produce the same ultimate result in this case ---protecting a public employee, here Back-street, from her statements being used against her in a criminal proceeding ---the two are nonetheless grounded in different principles.
The next step in our analysis requires us to examine the circumstances under which a court can find an offer of use immunity binding on the state, when the offer was made by a government official who is unauthorized to grant immunity.
B. Non-statutory Immunity
The court of appeals embraced the legal theory that the sheriff's advisement constituted an affirmative offer of use immunity from the sheriff's office to Back-street, which could be made binding on the state under the apparent authority doctrine --- that is, made binding even though the sheriff's office did not have authority to make such an offer under Colorado statute. A Colorado statute sets forth the parameters for offering immunity to witnesses who refuse to testify on the basis of the privilege against self-incrimination. Under the statute, a district attorney, attorney general, or state special prosecutor may request immunity for
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