State May Not Make Direct or Derivative Use of Public Employee’s Compelled Statement in Criminal Action

The Supreme Court of Ohio ruled today that, under the U.S. Supreme Court’s decisions in Garrity v. New Jersey and Kastigar v. United States, when a public employer compels an employee under threat of firing to make a statement in an administrative proceeding: the state may not make any direct or derivative use of the employee’s statement in a criminal proceeding against the employee; the state makes derivative use of the employee’s statement when it presents to a grand jury testimony from a witness to the statement and when the prosecutor reviews the employee’s statement in preparation for trial; and when the state fails to prove that it did not make any use of the employee’s statement in obtaining an indictment, the indictment must be dismissed.