DOES A “GARRITY WARNING” REALLY PROTECT
AN EMPLOYEE FROM SELF-INCRIMINATION?
Henry A. Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
Public employees who are being investigated by their employer are often given what is commonly referred to as a “Garrity Warning” or “Garrity Statement.” A Garrity Warning, the name of which is derived from the United States Supreme Court case of Garrity v. New Jersey, typically informs a public employee who is being interviewed, as part of an investigation for possible disciplinary action, that the employee must answer fully and truthfully any questions that are posed to the employee, and that the failure or refusal to answer questions would be deemed insubordination and would subject the employee to separate disciplinary action, including removal from employment. Of course, this raises the question of whether the government�s forcing an individual to answer questions, or face termination, violates the individual�s right to be free from self-incrimination, guaranteed by the Fifth Amendment to the United States Constitution. The answer is the Fifth Amendment is not violated, but only if the employee is informed that any statements the employee makes during the interview cannot be used against him/her in any criminal proceedings. In other words, the employee is provided immunity for his/her statements. This is the “Garrity Warning.”
Employees who are given Garrity Warnings often justifiably are concerned about the extent of the immunity given to their statements. What does it really mean when an employee is told that his/her statements will not be used against the employee? Can the statement still be reviewed and used to educate other police officers and prosecuting attorneys in a criminal case? Can police use information revealed during the interview to discover other evidence, evidence that the police in the criminal proceeding might not otherwise discover?
The Ohio Supreme Court has just answered some of the questions surrounding a Garrity Warning in a case known as State v. Jackson. In that case the Ohio Supreme Court issued a clear warning to police and prosecutors that statements made during an internal investigation, when the employee was ordered to answer all questions and for which he was given immunity, are off-limits to police and prosecuting attorneys involved in subsequent criminal proceedings.
In State v. Jackson, the employee, a police officer, was questioned about his involvement in a bar fight and was asked whether he possessed a firearm inside the bar. He was given a Garrity Warning and, after that warning, answered the questions that were posed to him. In answering those questions, he disclosed the name of a potential witness, a witness that was not previously known by the interrogating officer. This disclosure then led the interrogating officer to interview the previously unknown witness.
The prosecuting attorney�s office subsequently presented the case to a grand jury seeking a criminal indictment against the employee. During the grand jury proceedings, the officer who interrogated the employee as part of the internal investigation testified before the grand jury. Although this officer testified the employee had given a statement to him, he did not answer any questions as to the contents of the statement given by the employee during the internal investigation. The employee was indicted for the illegal possession of a firearm.
After the indictment, and as part of the preparation for the criminal trial, the prosecuting attorney had access to and reviewed the statement made by the employee during the internal investigation. This use of his statement led the employee to move to dismiss his criminal indictment alleging that his Garrity rights had been violated. The trial court agreed with the employee and dismissed the criminal case. An appeal to the Ohio Supreme Court eventually followed. The Ohio Supreme Court decided to hear the appeal, and stated that it took the case in order to “(1) define the meaning of �use� for Garrity purposes and (2) clarify the remedy for a Garrity violation.”
In discussing the scope of Garrity, the Supreme Court noted that “In a criminal proceeding against a public employee, the state may not make direct or derivative use of an employee�s statement that was compelled under threat of the employee�s removal from office.” It is important to note that Garrity prohibits the direct or derivative use of the statement. The state is prohibited not only from using the employee�s statement in the criminal proceeding, but it also may not use any evidence that was discovered as a result of the statement.
The Supreme Court first determined in State v. Jackson that the presence of the interrogating officer during the grand jury proceedings violated Garrity, even though the officer, during his grand jury proceedings, said he would not answer questions about the contents of the employee�s statement. The Court held that the use of the same officer, who conducted the internal investigation interview, as a witness before the grand jury constituted a derivative use of the employee�s statement, in violation of Garrity.
Second, the Court held that the prosecutor�s review and use of the employee�s statement during preparation for the criminal trial constituted a violation of Garrity as well.
Having found that Garrity was violated, the Court then discussed the remedy. In this respect, the Court noted that if the violation occurred before or as part of the indictment process, the remedy would be to dismiss the indictment. If the violation occurred during the criminal trial or trial preparation, the remedy would be to exclude or suppress the statement and any evidence derived from it (two other justices would have gone further and indicated that the use of the statement during trial preparation should have resulted in the dismissal of the criminal case, not just the exclusion of evidence). In State v. Jackson, the violations occurred both before the indictment and during trial preparation. Because the first violation itself mandated dismissal of the indictment, the Court affirmed the trial court�s dismissal of the criminal case.
There is one other interesting aspect of the Court�s decision, and that is its discussion of the liability of the public employer for breaking its promise and providing the employee�s statement to the prosecutor. The Court stated the following:
“The prosecutor�s use of the statement during trial preparation not only violated Jackson�s constitutional rights, but also revealed that the police department broke its promise to Jackson that neither the statement nor the “fruits” of the statement would be used in a later criminal proceeding. When such a promise has been made to a public employee, the public employer should not provide the prosecutor with the compelled statement. When the state is free to review a Garrity statement, the public employer cannot ensure that the statement will not be used directly or derivately. The public employer may run a risk of a lawsuit if it turns over a Garrity statement to prosecutors, for the Sixth Circuit recently held in McKinley v. Mansfield (C.A.6, 2005), 404 F.3d 418, that police officers who turn over another officer�s compelled statement to a prosecutor can be held liable for violating the officer�s constitutional rights.”
In other words, a public employer or a public official, who compel an employee�s testimony but then violate Garrity by turning the statement over to the police or use the statement in criminal proceedings, could be held personally liable for violating the employee�s constitutional rights. This may be a powerful incentive for employers and officials, who utilize Garrity to compel testimony, to actually comply with Garrity.