Kristi Shute Indiana Office of Inspector General
Dec 25, 2015
Kristi ShuteIndiana Office of Inspector General
Kristi [email protected](317) 234-3993
Office of Inspector General315 West Ohio Street
Room 104Indianapolis, IN 46202
www.in.gov/ig
The Bottom Line:
A public employee’s statement, given during an internal
investigation, cannot be used against him in a later criminal
proceeding.
The Run-down:
• Police Officers questioned re: fixing traffic tickets
• Told if they refused to answer, faced termination
• When they answered questions, answers were used
against them in criminal proceedings
No!• The choice between:
– Losing your job OR– Self-incrimination
Constitutes coercion!
Therefore, the answers were not voluntary!
Protection of the Individual under the 14th amendment against coerced statements
prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office.
Applies to all members of the body politic! i.e. public employees
Public employee
Explicit threat of loss of job
Criminal proceeding
Police Officer appeared under Grand Jury subpoena
Refused “waiver of immunities”
Fired for refusal to waive immunity
Unless given use immunity, cannot be fired for refusal
If use immunity given, may be fired if continued refusal
to answerSpecific, directed questions
Sanitation employees summoned to testify re:
corruption
Fired when refused to relinquish 5th amendment rights
Public employees subject to dismissal if refuse to account for performance of their
public trust, after proper proceedings, which do not involve attempt to coerce relinquishment of constitutional rights.
Because state wished to use answers for criminal proceeding, and not merely
account of public trust, employees could not be dismissed
NY statutes required public contracts to provide that if contractor refuses to waive immunity or testify concerning his state contracts, existing contracts
may be cancelled & could be disqualified for 5 years
NY licensed architects refused to sign immunity waivers for grand jury
subpoena
Contracting authorities notified of the conduct
Architects challenged statutes as violating privilege against compelled
self-incrimination
Extends Garrity to contractors
Physician charged with distribution of a controlled substance
Appeared before ALJ to address the suspension of his DEA registration,
testified as an adverse witness.
Registration formally revoked.
Choice: Assert 5th amendment and ALJ could draw negative inference, or testify
and risk incriminating statements
Distinguishable: in Garrity refusal to waive alone resulted in loss of employment
Potential silence only one factor to be considered by ALJ when making
determination
Notice: Not a public employee involved
Fire Dept Employee questioned by federal agency after supervisor told
him they were downstairs
Employee answered questions
Then argued for suppression of answers based on Garrity
Interrogation did not violate Garrity:
Statements not obtained under threat of removal from fire department
position
Neither agents nor Supervisor mentioned to defendant that refusal to answer would result in removal
from employment
Police Officer charged with DUI
Argued to bar admission of breath test results arguing that he provided
sample only under threat of termination
Fifth Amendment applies only to testimonial or communicative
evidence, not physical evidence
Bisard
Fire Dept Capt accused of sexual harassment
2 hearings held resulting in termination
Garrity does not protect public employees from having to
answer questions concerning their conduct at their own
termination hearings in non-criminal investigation
FSSA Caseworker
D interviewed separately: OIG special agents then agency personnel
Motion to Suppress
“Fruits” inadmissible also
Internal investigation?
Criminal investigation?
Training key
A public employee’s statement, given during an internal
investigation, cannot be used against him in a later criminal
proceeding.
Keep internal and criminal investigations separate
Thank you!Office of Inspector General
315 West Ohio StreetRoom 104
Indianapolis, IN 46202(317) 232-3850www.in.gov/ig