Summary: The threat of removal from public office to induce an employee to forgo the privilege against self-incrimination secured by the 14th Amendment renders the resulting statements involuntary, and therefor inadmissible in the state criminal proceedings.
When you are involved in an internal investigation, you have certain rights. You need to be aware that your agency has some rights as well. In Garrity v New Jersey, your agency has the right to demand that you answer questions related to a specific incident, as a condition of your employment. What they cannot do is then use that statement (because it is compelled) in a criminal proceeding. In order for you to guarentee this protection, you must be advised of a Garrity Warning. Click on the link to the left for an example of the “Garrity Warning”.
WARNING: If you are read Garrity AND advised of Miranda in the same interview…..CLARIFY which one they meant to ask you. The two warnings conflict with each other and by a matter of law, they cannot be read in the same interview.
Supreme Court Excert: “Police Officers, when questioned about illegal activities who answered questions after a warning that they were entitled to remain silent and any information given might be used against them in a criminal prosecution, but if they refuesed to answer the questions would be subjeted to removal from office may have their convictions based on such testimony reversed. The protection of the indiviudal out of the 14th Amendement against coerced statements prohibits the use in subsequent criminal proceedigs of the statements obtained under threat of removal from office and it extends to whether they are police officers or other members of the body politic.”
KNOW YOUR GARRITY RIGHTS
DO NOT MAKE A STATEMENT WITHOUT AN ORDER FROM YOUR DEPARTMENT.
DO NOT REFUSE to make a statement/report if ordered to do so even if the agency refuses to comply with your administrative rights or you will be subject to termination for insubordination. BUT, CONFIRM that you have been ORDERED to make the statement/report. If you are advised of your Miranda rights or if you are not ordered to make a statement/report, DO NOT do or say anything until you have consulted with your FOP attorney.
THE GARRITY STATEMENT
On (date) , (time) at (Location), I, (Name), was ordered to make this statement/report by (Name and rank). I submit this statement/report at his/her order as a condition of my employment and upon pain of discipline/termination. I demand a representative/attorney be present before proceeding with any interview or writing any report. I hereby invoke my rights underGarrity v. New Jersey, 385 U.S. 493 (1967) and Spevack v. Klien, 385 U.S. 551 (1956).
It is my belief and understanding that this report/statement is for internal purposes and will not and cannot be used against me in any subsequent proceeding.
This statement/report is made to the best of my memory, knowledge, and belief. I reserve the right to amend or change this statement to correct or explain any unintended mistake, conflict, or contradiction, without subjecting myself to a charge of untruthfulness and demand the opportunity, before this matter is concluded, to review any and all evidence in this matter, including, without limitation, the statements and reports made by others.
For any and all other purposes, I hereby invoke my constitutional right to remain silent and to consult with an attorney pursuant to the Sixth, Fifth, and Fourteenth Amendments to the U.S. Constitution and any other rights prescribed by law.
As an officer, FOP highly encourage you to carry a wallet card which highlights your rights under Garrity. We encourage all FOP members to carry it.