Introduction:
Public employees, including law enforcement officers facing investigatory interviews or in a disciplinary setting, have some rights from their employer, such as the Garrity right. They can inquire as to the nature of the inquiry. The nature of the inquiry—criminal or administrative—determines the appropriate warnings—Garrity, Miranda, or the Reverse Garrity—they should receive. In addition, you have a right to sue for offences and harassment that arises at your workplace.
Garrity right:
Garrity right demands that an interviewer notify the public employees that:
- they are under investigation for violations of departmental rules,
- that they are obligated to give statements for administrative purposes, and
- these answers may not be used against them in a criminal proceedings.
The right protects public employees from making incriminating statements out of force or coercion during investigatory interviews conducted by their employers.
History of Garrity right
The right follows the celebrated case of Garrity vs. New Jersey (1966). In that case, the U.S. Supreme Court prohibited the forcing of public employees, using a clear threat of discipline, to violate the principle of compulsory self-incrimination.
The facts of that case are these: The New Jersey attorney general questioned police officers during an investigation alleging ticket fixing. The officers received orders to respond to the investigators’ questions. Their interrogator informed them that refusal to respond to the questions would result in termination of their employment. The officers answered the questions and their answers became admissions against them in a criminal prosecution.
The Supreme Court held: “that the choice imposed on [the officers] was one between self-incrimination or job forfeiture”. The Court held that if a public employee is ordered to answer questions by their employer under the threat of possible loss of the employee’s job, the statement they made are not voluntary, but are made under duress. Statements made under these conditions are unusable as evidence in a criminal prosecution. The decision stated that:
“We now hold that the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic”
The Garrity right has roots in the United States Constitution, in the Fifth and Fourteenth Amendments to the Constitution. The Fifth Amendment provides that the government cannot compel a person to be a witness against him or herself. The Fifth Amendment guarantees an individual the right to remain silent. The Constitutional Provision requires the government, as the employer, to protect a public employee who faces a disciplinary interview. The Fourteenth Amendment, on the other hand, provides for equal protection of the laws for all Citizens.
Miranda right:
The right flowed from the celebrated case of Miranda v. Arizona (1966). In each of the four cases, police officers, detectives, or a prosecuting attorney questioned the defendant, while in police custody, in a room. None of the defendants received a full and effective warning of his rights at the outset of the interrogation process. The US Supreme Court held that
The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination.
In the absence of other effective measures, the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him
The Garrity right is similar to Miranda rights for public employees. The difference is that the Miranda Warning applies where the inquiry is for the purpose of criminal proceedings and the public employee is under arrest or in detention. Once the inquiry is for alleged criminal conduct, the public officer is giving the Miranda warning. The employee has a right to not respond to question until his attorney is present.
The Reverse Garrity applies where the inquiry is criminal and the public employee is not under arrest.
Assert your Garrity right:
You may receive a Garrity warning or be asked to sign a Garrity statement before a disciplinary interview. Most times, you may not. It will then left for you to assert your rights. The burden really is on the employee to assert their Garrity rights. An employee should assert this right whenever he believes he is under investigation for possible criminal conduct.
You can assert the right using words like this:
“If you are investigating me for disobeying any administrative rules, which are the result of allegations of criminal conduct, I wish to assert my Garrity rights before making any statements or answering any questions.”
A public employee can enforce it by asking the interviewer for the opportunity to seek advice from his union representatives and/or legal counsel before responding to questions.
At that point, the management should:
- Give a clear directive to the employee to respond to the question;
- Make sure the query focuses on the employee’s duty or suitability for employment;
- Inform the employee that no person will make use of the responses nor the outcomes against him/her in any criminal procedures.
If the interviewer persists and compels you to answer the questions, then Garrity rights apply. This is because your employer is “forcing” you to answer possibly incriminating questions. Garrity rights will not protect certain statements: these include voluntary or spontaneous statements, statements to non-supervisory coworkers, and statements to third parties.
Protect your Garrity right. We can match you with a nearby Attorney to assert your right. Just fill this form:
