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The Garrity Rule – Know & Understand your Rights
By Carl ToersBijns, former deputy warden, ASPC Eyman, Florence AZ
Published: 05/18/2015

Lawbook woodengavell Hot Topic – all police officers, correctional officers and any other public service officer who is threatened a dismissal or discharge when involved in an administrative investigation should know the Garrity Rule or Warning.

The Garrity rights, Garrity rule or Garrity warning is a protection that is utilized by many law enforcement officers each year. Simply, Garrity is an invocation that may be made by an officer being questioned regarding actions that may result in criminal prosecution.

The 'Garrity Rule' is a phrase that is frequently used but also probably frequently misunderstood in terms of what the rule or warning may and may not accomplish. This article is an educated attempt to brief you on the rule and its implications as well as its limitations when you are under investigation and asked questions you are compelled to answer.

The Fifth Amendment to the United States Constitution provides that, “no person ‘shall be compelled in any criminal trial to be a witness against himself.” In 1967 the United States Supreme Court established the fundamental principle that information obtained from public employees during investigations after a threat of discharge was “compelled” and could not be used in criminal proceedings.

Garrity v. New Jersey, 385 U.S. 493 (1967). Also in 1967, the United States Supreme Court held that the principles established in Garrity applied to the states through the Fourteenth Amendment to the United States Constitution. Spevack v. Klein, 385 U.S. 511 (1967).

As suggested by its title, the Garrity case originated in the State of New Jersey. The appellants in the case were police officers in certain New Jersey boroughs. The Attorney General of the state investigated alleged irregularities in the handling of cases in the Municipal Courts brought in those boroughs.

Several police officers were questioned concerning the alleged fixing of traffic tickets and before being questioned each officer was told that anything he said might be used against him (or her) that he (her) had the privilege to refuse to answer if the disclosure would tend to incriminate him but that if he refused to answer he would be subject to removal from office.

No immunity was granted and several officers answered questions. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws.

The officers were convicted over their protest that their statements were coerced by reason of the fact that if they refused to answer they could lose their positions with the police department. The United States Supreme Court reversed the convictions and established what is now known as the Garrity Rule.

Thus, the basic thrust of the Garrity Rules is:
  1. That a department member may be compelled to give statements under threat of discipline or discharge but ………
  2. Those statements may not be used in the criminal prosecution of the individual officer.
This means that the Garrity Rule only protects a department member from criminal prosecution based upon statements he or she might make under threat of discipline or discharge. The rule applies only to 'compelled' statements which means that any voluntary statement is given without the benefit of the Garrity Rule.

In the State of Missouri, independently obtained evidence may be used for criminal prosecution providing the government can demonstrate that it was, in fact, not the product of the employee’s disclosure. This is known as transactional immunity which has been approved by the United States Supreme Court. Kastigar v. United States, 406 U.S. 441 (1972).

As suggested, for purposes of the Garrity Rule, a statement is not compelled if it is voluntary. If the statement is ordered and the individual reasonably believes that he or she must give the statement or be subjected to discipline or discharge, the Department member is protected against the use of that statement in a criminal prosecution against that officer.

The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, 384 U.S. 436, 464-465, is "likely to exert such pressure upon an individual as to disable him from making a free and rational choice."

We think the statements were infected by the coercion [5] inherent in this scheme of questioning [385 U.S. 493, 498] and cannot be sustained as voluntary under our prior decisions.

Unlike a Miranda Warning, a Garrity Warning need not always be given in order for the department personnel to obtain the protection of Garrity. The only requirement is that the statement be “compelled.” Make sure the record reveals this demand by department officials participating.

There is an exception to the Garrity Rule and there are areas where the Garrity Rule does not apply. For example:

The Garrity Rule does not apply in situations where one officer is asked to give a statement against another. No officer has a right to protection against incriminating another person.
  • A 'compelled' statement requires a complete and truthful version of what took place.
  • Failure to give such a statement can result in disciplinary action or termination
The exception to the Garrity Rule is that if an officer testifies in a criminal proceeding inconsistent with the 'compelled' statement, that statement may be used as a basis for impeaching the officer.

Therefore, as suggested above, a truthful statement is required under the Garrity Rule. Members should be aware that a 'compelled' statement may be used in any civil proceeding and may be used in any criminal proceeding except against the person that made the statement, subject to the impeachment provision.

The threat of removal from public office under the forfeiture-of-office statute to induce the petitioners to forgo the privilege against self-incrimination secured by the Fourteenth Amendment rendered the resulting statements involuntary and therefore inadmissible in the state criminal proceedings. Pp. 496-500. [385 U.S. 493, 494]

(a) The choice given petitioners either to forfeit their jobs or to incriminate themselves constituted coercion. Pp. 496-498.

Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office. [1] [385 U.S. 493, 495]

Appellants answered the questions. No immunity was granted, as there is no immunity statute applicable in these circumstances. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws. Appellants were convicted and their convictions were sustained over their protests that their statements were coerced, [2] by reason of the fact that, if they refused to answer, they could lose their positions with the police department. See 44 N. J. 209, 207 A. 2d 689, 44 N. J. 259, 208 A. 2d 146.

The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, 384 U.S. 436, 464-465, is "likely to exert such pressure upon an individual as to disable him from making a free and rational choice.“ We think the statements were infected by the coercion [5] inherent in this scheme of questioning [385 U.S. 493, 498] and cannot be sustained as voluntary under our prior decisions.

Recommendation:
It is, of course, always recommended to seek advice from an attorney qualified in the field before answering any formal questions and prior to invoking the Garrity Rule.

Case information: Citation –
U.S. Supreme Court
GARRITY v. NEW JERSEY, 385 U.S. 493 (1967)
385 U.S. 493 GARRITY ET AL. v. NEW JERSEY.
APPEAL FROM THE SUPREME COURT OF NEW JERSEY. No. 13.
Argued November 10, 1966. Decided January 16, 1967.

Corrections.com author, Carl ToersBijns, (retired), has worked in corrections for over 25 yrs He held positions of a Correctional Officer I, II, III [Captain] Chief of Security Mental Health Treatment Center – Program Director – Associate Warden - Deputy Warden of Administration & Operations. Carl’s prison philosophy is all about the safety of the public, staff and inmates, "I believe my strongest quality is that I create strategies that are practical, functional and cost effective."

Other articles by ToersBijns:



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