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State employees’ statements during internal investigations may be admissible in criminal proceedings, even though compelled under threat of job loss, if self-incrimination rights later waived
The right to remain silent is perhaps one of the best known principles enshrined in our Constitution, familiar to even the most casual viewer of Law & Order. Simply put, criminal suspects in police custody can validly refuse to make any statements at all and, unless they have been informed of this right and waived it, their statements may not be used as evidence against them.1 Less well known, however, is the right of public employees to remain silent during internal investigations. Under Garrity v. New Jersey, such employees may not be coerced into speaking through threats of being fired or sanctioned; if a statement is obtained after such a threat, it will be inadmissible in any criminal proceeding or prosecution.2 Although public employees can be compelled to answer questions “specifically, directly, and narrowly relating to the performance of [their] official duties,” they will retain immunity from the use of their answers in criminal prosecutions.3 This principle also applies to public contractors as well as public employees.4 It should be noted, however, that Garrity merely protects public employees from the use of their compelled statements in criminal prosecutions; it does not bar prosecutions based on evidence other than the compelled statements.5 In fact, the Eleventh Circuit recently held that even a statement compelled in violation of Garrity can be used in a subsequent criminal prosecution if the state employee who made it has subsequently been informed of his rights and validly waived them.6
In United States v. Smith, a prison guard made statements during several internal investigations of an inmate’s death from blunt force trauma.7 One of the interviewers failed to advise the guard of his right to remain silent and, in fact, told him that he was duty-bound to tell him everything that he knew about the death.8 The guard insisted that he had only used justifiable force in dealing with the inmate, despite reports from other witnesses that the guard had pulled the handcuffed inmate out of a hospital bed and stomped on his head until he passed out.9 The guard was ultimately terminated and the FBI began its own criminal investigation into the inmate’s death, again seeking to interview the guard.10 FBI agents informed the guard that they had not seen his statements from the internal investigations, that they believed those statements had likely been compelled, and that he had the right to prevent those statements from being used against him under Garrity.11 The guard said he understood these rights and signed a written waiver of them, insisting that his prior statements denying responsibility for the inmate’s death had been truthful and that he wished to speak with the agents to set the record straight.12 He then repeated his previous narrative of the events leading to the inmate’s death.13
A federal grand jury subsequently indicted the guard for, among other things, making false statements, obstructing justice, and depriving the inmate of his civil rights under color of law, resulting in injury or death.14 The guard moved to suppress his statements from the internal investigations on the grounds that they had been compelled in violation of Garrity.15 The district court denied the motion to suppress and the guard was convicted of all charges.16
On appeal, the Eleventh Circuit affirmed the denial of the suppression motion.17 The court first noted that some of the guard’s statements—such as his duty and incident reports—had not been compelled at all because there was no evidence he was directly threatened with discipline if he did not make them.18 Assuming, without deciding, that some of the guard’s other statements were in fact compelled within the meaning of Garrity, the court concluded that the guard had waived his rights with regard to those statements when he signed the written form the FBI agents gave him.19 The court determined that the waiver was voluntary because the guard’s meeting with the agents was consensual, he was not in custody, and there was no evidence of coercion, threats, or deception.20 It was also knowing and intelligent because the agents explained the guard’s Garrity rights to him and he said he understood them.21 Finally, there was no independent violation of Garrity by the agents, who did not have access to the guard’s statements until after he had executed the waiver.22 Accordingly, there was no self-incrimination problem with the use of the guard’s statements at trial, and his conviction and sentence could be affirmed.23
Thus, though internal investigators should still take pains to avoid the appearance that they are threatening public employees with sanctions should they decline to cooperate with an investigation, the Eleventh Circuit has now provided a blueprint for investigators to obtain a waiver and use an employee’s statement even if such threats are made.
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