Kristi ShuteIndiana Office of Inspector General

Kristi Shutekshute@ig.in.gov(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