Garrity and compelled statements

The New Jersey Supreme Court directed the state Attorney General to investigate alleged fixing of traffic tickets in certain boroughs. Before being questioned, each police officer was warned that anything he said might be used against him in any state criminal proceeding, that he could refuse to answer if the answer would tend to incriminate him, but that if he refused he would be subject to removal from office. The officers answered. No immunity was granted. Some of the answers were later used to convict them of conspiracy to obstruct the administration of the traffic laws.

The Supreme Court reversed. “The choice imposed on petitioners was one between self-incrimination or job forfeiture.” The option to lose their livelihood or incriminate themselves was “the antithesis of free choice to speak out or to remain silent.” The Court held the statements were coerced and could not be sustained as voluntary. It also said: “policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”

A New York City patrolman was subpoenaed before a grand jury investigating bribery and corruption of police officers. He was asked to sign a “waiver of immunity” and told he would be fired if he did not. He refused and was discharged for that refusal alone.

The Supreme Court reversed. It drew a distinction that still shapes internal investigations: if the officer “had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties,” without being required to waive immunity, “the privilege against self-incrimination would not have been a bar to his dismissal.” But “the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment.”

The same day, in Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392 U.S. 280 (1968), the Court applied the same reasoning to city sanitation employees. Some were dismissed for refusing to sign waivers of immunity; others were told their answers could be used against them and were dismissed for refusing to answer on that basis. New York, the Court said, was seeking “not merely an accounting of their use or abuse of their public trust,” but testimony that could be used to prosecute them.

• Answer or lose the job, with immunity. Employees “may be compelled to respond to questions about the performance of their duties, but only if their answers cannot be used against them in subsequent criminal prosecutions.” Given adequate immunity, the State may insist that employees answer questions under oath about the performance of their job or suffer the loss of employment. Lefkowitz v. Turley, 414 U.S. 70 (1973), which applied the employee cases to public contractors.
• No forced waiver. Turley restated what the earlier cases hold: answers elicited upon the threat of the loss of employment “are compelled and inadmissible in evidence.” If answers are required, the State “may not insist that the employee or contractor waive such immunity.”
• Use and derivative use. In the setting of statutory immunity under 18 U.S.C. 6002, the Court held that immunity from use and derivative use is coextensive with the Fifth Amendment privilege. In a later prosecution, the government has the burden of proving affirmatively that its evidence is “derived from a legitimate source wholly independent of the compelled testimony.” Kastigar v. United States, 406 U.S. 441 (1972).

Officers and other public employees. Public employees keep the privilege against self-incrimination. An employee ordered to answer questions narrowly about official duties can be dismissed for refusing. In exchange, compelled answers and their fruits cannot be used against the employee in a criminal case.

Internal affairs investigators. An administrative interview and a criminal investigation are different tools. A compelled interview can get answers about the job, but those answers come with a constitutional limit on criminal use. Questions that stay specific, direct, and narrow to official duties fit the line the Court drew in Gardner. A demand to waive immunity crosses it.

Prosecutors. Under Kastigar, the prosecution must be able to show that its evidence came from a source wholly independent of the compelled statement. Exposure of the criminal case to compelled statements, or to leads drawn from them, makes that showing harder.

• Decide early whether an interview is administrative and compelled, or part of a criminal investigation. The answer controls how the statement can be used.
• Record exactly what the employee was told about the duty to answer, the consequences of refusing, and the use of the answers.
• Keep compelled statements, and anything learned from them, apart from the criminal file, and document who had access to them.
• Do not ask an employee to sign a waiver of immunity as a condition of keeping the job.
• State law, collective bargaining agreements, and agency policy often add procedures for these interviews. Check what applies in your jurisdiction.

• Garrity v. New Jersey, 385 U.S. 493 (1967)
• Gardner v. Broderick, 392 U.S. 273 (1968)
• Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392 U.S. 280 (1968)
• Kastigar v. United States, 406 U.S. 441 (1972)
• Lefkowitz v. Turley, 414 U.S. 70 (1973)