Use of Garrity

Current Trends in Internal Investigations

1.     Use of Garrity Statements

2.     Legal Defense Committees

Garrity v New Jersey

385 U.S. 493 (1967)

Fifth Amendment Rights

In a Law Enforcement

Disciplinary Setting

The Garrity rule stands for the premise that a law enforcement officer has a right to be free from compulsory self incrimination in the disciplinary process.  The Basic Requirements of the Garrity rule require the agency to:

·        Order the officer to answer the question under the threat of disciplinary action.

·        Ask questions which are specifically, directly and narrowly related to the officer’s duties or the officer’s fitness for duty, and

·        Advise the officer that the answers to the questions will not be used against the officer in a criminal proceeding.

If an officer refuses to answer the employer’s questions, the officer may be disciplined for insubordination.

Essential to the application of the Garrity rule is that the employer actually “orders” the employee to respond to questions, and that the employee be compelled by threat of possible discharge for failure to respond to the questions. To determine if the application of the Garrity rule is an order two tests may be used.

If the employee “subjectively” believes that failure to answer questions will result in his loss of Job, and

If the employee’s belief is “objectively” reasonable at the time the statement is made.

Some pre-requisites for when and how the Garrity rule would attach:

Threat of loss of employment for failure to speak renders the responsive statement compelled if:

The employee faces a choice of:

·        Self incrimination

·        Lying, or

·        Injurious silence (loss of employment)

There is a split among the various jurisdictions, whether an employer must actually give an “affirmative” guarantee of immunity before the employer can demand answers.

A minority of courts hold the Garrity rule and guarantees automatically attaches.

A majority of courts however, hold an employer must give affirmative guarantee of immunity and warn the officer that failure to respond could lead to disciplinary action.

A compelled statement under Garrity gains immunity in a subsequent criminal proceeding.  However, a statement given under Garrity can be used for a wide variety of other purposes:

1.  Against the officer in a disciplinary process

2.  Civil lawsuits brought against the officer, and

3.  Criminal prosecutions of other officers

Immunity under Garrity may be in two forms:  Use or Derivative Use Immunity and Transactional Immunity.

Use and Derivative Use Immunity provides an officer immunity from the use in a subsequent criminal proceeding of his/her statements and the fruits of those statements made in an administrative interrogation.

Transactional Immunity prohibits any prosecution over the entire transaction which is the subject of the administrative interrogation.  The Supreme Court held in Garrity that only use immunity was required under the Federal Constitution.  State Courts are free to interpret their constitution more broadly than the Federal Constitution.

A new and disturbing trend involving the Garrity statements taken from officers during their internal affairs investigation is not the use of the officers compelled statement in a criminal proceeding against that officer but against other officers involved in the same incident.  Two officers involved in an “excessive force” complaint may each give their statements.  Those statements may then be used against the other officer involved.  In addition, those persons to whom the officer may have spoken to about the incident may be compelled to give statements including a labor union committee reviewing the incident to determine if they will support the officer.  The officer should only speak to legal counsel who may then report his client’s compliance with union guidelines without having to give details of the officer’s actions.  Once the investigation is completed, complainants through legal counsel may use the officers recorded statements in a civil action against the officer.