In order to understand when Garrity applies, take a look at a few scenarios. What if your department requires that you be read Garrity in any internal investigation? Is this a bad thing? Technically, no. Many police administrators are under the impression that Garrity should be used as a way of invoking a compelled statement. This is not true. Governmental agencies have a right to compel a statement from an employee at any time. Compliance with an order is mandatory from any government employee or the employee is subject to an allegation of insubordination. Courts have consistently ruled government agencies have the right to an accounting from their employees about their activities that relate to their performance or ability to perform their assigned tasks. Garrity is used when there is the potential of criminal liability. However, if the employee ordered to give a statement when no criminal charges are contemplated, the employee would not be entitled to immunity, therefore, no Garrity. It goes on to say in later decisions that the accused must be truthful when giving compelled immunized statements.
Can an officer demand a Garrity warning? Of course they can. But, we are under no obligation to read Garrity to the officer. You should explain to the officer that Garrity is not necessary in the investigation due to it being a non criminal investigation. Most policies state that officers and public employees are not entitled to a Garrity warning unless it is a criminal investigation (the criminal investigation must not use Garrity; it is only used in administrative investigations when there exists a criminal potential). This point must be reinforced by training officers to the rank and file of what is expected of them during an internal affairs investigation. As I teach across the country, investigators hear me repeat several times to train their staff on Garrity and internal affairs investigations. A well-trained employee will understand up front what is to occur and expect it. The flow of information and fairness to all employees will be understood.
When should the Garrity warning be given? If an employee is under investigation of criminal acts, it is best to notify them in writing of the charges being investigated prior to the interview. At the internal affairs interview, which should be audio or video taped, the officer or employee should be read the Garrity warning and the charges. The officer should be allowed to read the Garrity form and copy of the charges. Finally, the officer should sign the form after all questions the officer has have been answered. It is not an accepted practice to verbally inform anyone of Garrity. To do so would cloud the issue as to whether the officer fully understood the process that is unfolding.
Here is another unfortunate circumstance: an officer is charged criminally in his own jurisdiction. What is the correct protocol? Ideally, a separate agency should complete the criminal investigation and the department should conduct the administrative investigation. The investigations may run parallel and even work together to the point of the interview of the accused employee. When the interview of the accused employee is to occur, the investigation must split. The criminal investigator interviews the accused, then the internal affairs investigator completes their interview at a different time. The IA investigator should never be present during the criminal interview; but the results of the criminal interview can be reviewed by the IA investigator. The compelled administrative interview of the accused employee should not be reviewed by the investigator conducting the criminal interview. There will be no contamination if handled this way.
There are several things to be considered at this point. If the criminal investigator and the internal affairs investigator interview at the same time, is this a problem? Well, put yourself in the accused officer's shoes. In the door walk the criminal investigator and the internal affairs investigator. Under most policies and procedures, it is stated officers will cooperate in any internal affairs investigation. Would the officer feel compelled to tell the truth and give up his Fifth Amendment rights? It could be articulated that he would be under the protection of the Garrity decision, even though it had not been read to him
These are a few of the more serious situations that arise in the mystic state of internal affairs. Garrity can be a confusing animal. We have to deal with it and be fair to all involved.