{¶ 11} We accepted jurisdiction over the state's appeal on the following proposition of law: "When a public employer compels an employee to give a statement under threat of removal from office, Garrity * * * prohibits the direct or derivative use of the statement in a subsequent criminal trial, but it does not prohibit a prosecutor's knowledge, or `non-evidentiary' use of it." We also accepted jurisdiction over Jackson's cross-appeal on the following proposition of law: "When a public employer compels an employee to give a statement under threat of removal from office, and then subsequently provides that statement to the prosecuting attorney who is pursuing a criminal conviction against the employee, State v. Conrad (1990), 50 Ohio St.3d 1, 552 N.E.2d 214, requires dismissal of the case unless the prosecuting attorney can establish that the state has not made any use of the [ Garrity statement] and that all of the evidence to be used at trial was derived from sources wholly independent of that [ Garrity statement]." In other words, we are asked to (1) define the meaning of "use" for Garrity purposes and (2) clarify the remedy for a Garrity violation.
Appellant contended this confession occurred during his January 30, 2015 testimony that was given under "proffered protections." He contended using the statements to indict him was not permissible under the United Stated Supreme Court decision in Kastigar v. United States, 406 U.S. 441 (1971) and Ohio Supreme Court decision in State v. Conrad, 50 Ohio St.3d 1, 552 N.E.2d 214 (1990). He implied the statements were used to obtain the grand jury indictment, and accordingly, if the state could not produce evidence from a source other than his proffer, the case must be dismissed.
Id. {¶ 52} In State v. Conrad , 50 Ohio St.3d 1, 552 N.E.2d 214 (1990), the Ohio Supreme Court adopted the two-prong test set forth in Kastigar and held that "whenever compelled testimony is used against the witness who provided it, any error cannot be held harmless." Id. at 4–5, 552 N.E.2d 214.
{¶ 13} The Supreme Court of Ohio has addressed the use of immunized statements by a prosecutor. In State v. Conrad (1990), 50 Ohio St.3d 1, 4, 552 N.E.2d 214, the supreme court adopted a two-part test set forth in Kastigar v. United States (1972), 406 U.S. 441, 460-62, 92 S.Ct. 1653, 1664-66. Under that test, "where a witness makes the claim that his or her immunized testimony was used: (1) the government must deny any use of the accused's own immunized testimony against him or her in a criminal case; and (2) the government must affirmatively prove that all of the evidence to be used at trial is derived from sources wholly independent of immunized testimony."
” He contended using the statements to indict him was not permissible under the United Stated [sic] Supreme Court decision in Kastigar v. United States, 406 U.S. 441 (1971) and Ohio Supreme Court decision in State v. Conrad, 50 Ohio St.3d 1, 552 N.E.2d 2 14 (1 990). He implied the statements were used to obtain the grand jury indictment, and accordingly, if the state could not produce evidence from a source other than his proffer, the case must be dismissed.
{¶15} Quoting State v. Conrad, 50 Ohio St.3d 1, 4, 552 N.E.2d 214 (1990), the Ohio Supreme Court has explained the relevant test: "[T]he Kastigar court established a two-prong[ed] test that the prosecution must satisfy where a witness makes the claim that his or her immunized testimony was used: (1) the government must deny any use of the accused's own immunized testimony against him or her in a criminal case;
Id. at 460-461. {¶ 15} In State v. Conrad (1990), 50 Ohio St.3d 1, the Ohio Supreme Court adopted the two-prong test set forth in Kastigar, and held that "whenever compelled testimony is used against the witness who provided it, any error cannot be held harmless." Id. at 4-5.
Based upon State v. Conrad and other cases, appellant argues that the trial court should have dismissed her indictment. See State v. Conrad (1990), 50 Ohio St.3d 1 (where, in obtaining an indictment from a grand jury, the prosecution uses immunized testimony of a witness and where that right to immunity was not waived, any indictment issued against the witness as a result of such grand jury proceedings must be dismissed); see, also, Garrity v. State of New Jersey (1967), 385 U.S. 493, 87 S.Ct. 616. {¶ 44} The prosecution must satisfy a two-prong test where a claim is made that immunized testimony was used: (1) the government must deny any use of the accused's own immunized testimony against him or her in a criminal case; and (2) the government must affirmatively prove that all of the evidence to be used at trial is derived from sources wholly independent of immunized testimony.
{¶ 13} "This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it 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." {¶ 14} In State v. Conrad (1990), 50 Ohio St.3d 1, 4, the Supreme Court of Ohio followed the Kastigar holding and stated the following: {¶ 15} "In Kastigar, the United States Supreme Court dealt with an immunity statute similar to R.C. 101.44, viz.
" State v. Dillon, Darke App. No. 05CA1674, 2006-Ohio-4931, ¶ 15, citing Kastigar, supra. The Ohio Supreme Court followed Kastigar in State v. Conrad (1990), 50 Ohio St.3d 1. {¶ 20} Here, the state agrees with Parsons that it must follow the two-pronged test in Kastigar.