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Do You Know the Boundaries Under Garrity?4/26/2018 10:56:00 AM
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Public Agency Training Council (PATC) articles covering
Garrity Use Immunity: A Guide for Investigators
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By Richard E. Lober, J.D.
A statement of a public employee and evidence derived from any statement cannot be used against that employee in a criminal prosecution when the statement is taken under threat of potential termination of employment. Such a statement is considered “coerced” under the 5th/14th Amendments of the U.S. Constitution. Garrity v. New Jersey, 385 U.S. 493 (1967).
In Garrity, the Attorney General’s Office was conducting a CRIMINAL INVESTIGATION concerning “ticket fixing”. The police officers under investigation were told:
- Anything you say can be used against you in a criminal case.
- You can refuse to answer any questions if your answers would tend to incriminate you.
- If you refuse to answer any questions, you can be fired.
Several officers provided statements which were used against them in the criminal prosecution. Ultimately, the statements were deemed coerced under the 5th Amendment – “No person …shall be compelled in any criminal case to be a witness against himself….”
Just as with the subject employee, a public agency also has the authority to compel WITNESS EMPLOYEES to cooperate with an investigator and answer questions during an administrative investigation. While witness employees may not have the same statutory, contractual, or policy rights as a subject employee (e.g. right to representation, notice of the complaint), nonetheless they are subject to the same consequences for refusing to cooperate and answer questions.
The rule of law regarding Garrity use immunity is straightforward. It is the situations which arise that continue to create potential Garrity issues.
- An audit that uncovers suspected theft by an employee
- Administrative misconduct that may also involve criminal misconduct ( i.e. sexual harassment/battery)
- Incidents that initially seem justified (i.e. use of force, officer-involved shooting)
For duplication & redistribution of this article, please contact Public Agency Training Council by phone at 1.800.365.0119. PATC 5235 Decatur Blvd Indianapolis, IN 46241
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