Garrity Warnings Against Self-Incrimination

Protecting the rights of individuals is paramount for the administration of justice. It is important to protect the rights of all individuals accused of wrongdoing especially when it comes to self-incrimination, and the assertion of their Fifth Amendment rights. Just as it is important to protect these rights for the citizenry, which allows them to invoke the Fifth Amendment, it is important to afford law enforcement officers the same rights and protections against self-incrimination. Regrettably, there are times when it is necessary to investigate officers for wrongdoings or policy violations. The application of Garrity warnings provides officers protection against criminal self-incrimination during an administrative investigation. However,
law enforcement administrators or investigators at time are not too familiar with how to apply Garrity during investigations, nor do administrators apply these warnings in the same way throughout the United States.
Important Facts about Garrity Warnings
There are some important rules to remember when it comes to the application of Garrity during an investigation. The article Garrity Warnings: To Give or Not to Give, That Is the Question by Eric P. Daigle (2012) talks about the Supreme Court decision of Garrity v. New Jersey that establishes “some straight forward rules regarding situations in which police officers are compelled to provide statements to their employers” (Daigle, 2012, p. 12). The foundation of Garrity is based upon the doctrinal fundamentals of “a due process prohibition against coerced confessions and the unconstitutional conditions doctrine, which prohibits government entities from offering a benefit conditioned on the recipient forgoing a constitutional right” (Driscoll, 2003-2004, p. 111). The Garrity Principle states that if an officer is compelled to make an incriminating statement “under the threat of job loss if the officer invokes the right to remain silent”, that the statement “may not be used against the officer in a criminal proceeding” (Daigle, 2012, p. 12). With the application of Garrity, the officer or employee must be ordered and compelled to answer the questions truthfully, and cooperate with the investigators in the administrative investigation. In addition, the line of questioning must be “narrowly tailored to the officer’s job duties” (Daigle, 2012). Finally, management or the investigator must advise the employee that any incriminating statements made during the investigation will not be used agaisnt them in criminal proceedings. One must keep in mind that asserting the use of Garrity does not give the subject officer or employee the right to lie during the investigation.
Garrity in a Nutshell
It is important for public administrators to understand the rules imposed under Garrity.
First, Garrity is an administrative and investigative tool used to compel a truthful statement from an employee during an internal investigation. With this in mind, administrators should explain to employees that they “are under no obligation to read Garrity to the officer” during a non-criminal investigation (Rider, 2007, para. 2). Second, investigators should only use Garrity should when there is a criminal potential during the administrative investigation. Third, Garrity does not protect the employee from false statements made during the investigation. Fourth, criminal and administrative investigations conducted simultaneously “should be done in a manner that does not compromise the integrity of either investigation” (Daigle, 2012, p. 13). Finally, investigators should not use or share with prosecutors incriminating statements made under Garrity in criminal proceedings because of potential
lawsuits.
Application of Garrity to Campus Law Enforcement.
One of the main concerns pertaining to the application of Garrity is that police managers and investigators sometimes do not completely understand the proper application of Garrity during investigations. This is particularly true when it comes to the application of Garrity to campus law enforcement officers. It is important for administrators and investigators to understand that Garrity Rights stem from the Fifth and Fourteenth Amendments (Taylor, n.d., para. 3). For the purpose of this article, the Fifth Amendment protects individuals against self-incrimination and provides for due process of law, among other protections. The Fourteenth Amendment makes the “Fifth Amendment privilege is applicable to the states” (Guido, 2005, para. 5). This is significant because the application of Garrity applies “when a public employee is being questioned by their employer” (Taylor, Garrity Rights Frequently Asked Questions, n.d.). The key words here are “public employee”. In higher education, there are public and private institutions. An institution of higher education may have campus security or campus police officers with the same legal authority as municipal, county, or state law enforcement officers. For public colleges and universities, the answer is simple: Garrity may apply to internal investigations as provided by Garrity v. New Jersey, and as outlined in this article. The murkiness in the application of Garrity involves private
college or university police departments. Police departments and officers at private institutions derive their authority from state statutes, but “are controlled by private entities” (Jahnig, 2016, p. 249). So are private police officers private actors acting under the color of state law? The courts have been inconsistent in this determination regarding violations of constitutional rights. However, when it pertains to the application of Garrity, private university police officers are private employees of the organization, and Garrity does not apply during internal investigations. During an internal investigation in a public organization (municipal, county, or state law enforcement), the officer is investigated by the employer who “is the government itself”, and thus “cannot compel a person to be a witness against him/herself” (Taylor, Garrity Basics, n.d.). During an internal investigation at a private institution, an employee of the private organization investigates the police officer, also a private employee of the same organization. In this instance, there is no investigation of the private employee by an employee of a governmental entity, and Garrity does not apply because the state is not compelling a statement from the police officer during the investigation.
Conclusion. Garrity is a tool for administrators to use during administrative investigations where a criminal potential exists. Garrity is not necessary during non-criminal investigations, and administrators are under no obligation to administer Garrity during those proceedings (Rider, 2007, para. 2). Most importantly for administrators is that incriminating statements made under Garrity cannot be used during criminal proceedings, and that under no circumstances should they use Garrity during a criminal investigation because doing so will compromise the criminal investigation and lead to potential lawsuits. The Fifth and Fourteenth Amendments allow equal protections of the law. Protecting the rights of individuals is paramount for the administration of justice. It is important to protect the rights of all individuals, including police officer and public employees, accused of wrongdoing especially when it comes to self-incrimination. There are times when it is necessary to investigate officers for wrongdoings or policy violations, and the application of Garrity warnings provides officers protection against criminal self-incrimination during an administrative investigation. With that said, Garrity is applicable to public or governmental employees and not applicable to the private sector. Although private police departments and officers derive their authority from state statutes, the process of internal investigations differs in that Garrity does not apply to internal investigations of police officers employed by a private entity. Even within the context of this article, Garrity can be confusing. It is advisable for one to consult a labor attorney or police union representative if there are questions pertaining to the applicability of Garrity for a given situation.