Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, What Justice Professionals Need to Know about Garrity: Myths & Realities. Here are just a few of his responses.
Audience Question: When doing a candid conversation or interview of an agent pursuant to Giglio pretrial prep, how does Garrity factor in when an AUSA is interviewing an agent that you have learned might be under investigation or perhaps you didn’t know but the agent suspects, he might be and then invokes Garrity?
Rick Hodsdon: There are several moving parts there because it sounds like you have a Giglio element. In a federal perspective, I think Giglio is broader than a Brady requirement that’s usually found on your state law. I think if you’re in a situation where you have some kind of basis to believe that you have a potential witness who is currently under active investigation, it’s not a problem to inquire of the witness whether or not they are aware of that. Sometimes, they might not even be aware of it. Perhaps a better alternative is once your interview is done is go to the employer of that agency, explain your witness and that you need to know if there is anything going on. I think you are going to have to explore that I think further by a case to case basis. In other words, go to the employer rather than the employee themselves might be a more accurate and candid source and frankly more reliable.
Audience Question: Does whether the suspect has been placed under arrest have any impact on Garrity?
Rick Hodsdon: When the suspect has been placed under arrest, then we really are pivoting now to a Miranda issue. If you are going to question them it’s a custodial interview. If you gave them a Miranda warning and they invoke their rights under Miranda to silence and then you turn around then say okay if you are going to maintain your right to silence, we’re going to fire you. I’m giving you an order. That’s sort of a variation of how Garrity came about in the first place. Remember Garrity got a Miranda warning too even though he was not in custody. If they invoke the Miranda warning and you decide that you are going to continue to pursue your interrogation, Garrity in all its glory is right there. You are not going to be able to use anything that you got from that interview in a criminal case.
Audience Question: Should pre-employment background checks and polygraphs also include Garrity rule?
Rick Hodsdon: At that point, if it’s pre-employment unless you are really scraping the bottom of the barrel I don’t think you have a basis to believe those folks are criminal suspects. You are not doing a criminal investigation, you are doing an employment personnel investigation. A Garrity advisory is probably not going to come into play. In my experience what was more likely to come into play in those circumstances is maybe you have some state privacy laws that regulate how you go about gathering information in a pre-employment background investigation. For example, in my state, we would be giving a person what you call a Tennessen warning which is their rights when they are being interviewed and giving information about themselves. That wouldn’t be a Garrity issue.
Audience Question: Does Garrity apply to contractors or consultants to justice agencies?
Rick Hodsdon: That’s a good question and we don’t have a definitive answer. If I were a defense counsel and representing somebody who is a contractor that is being prosecuted after they were required to talk to the investigator, to the agency that they are contracting with, I’d be looking where they threatened with a termination of a contract if they didn’t give a statement. My argument would be if they were threatened with a termination of a contract if you are not going to talk to us, we have a 10-day clause, your contract is going to end. I would argue as a defense counsel then that’s essentially a Garrity principle. Garrity said the economic loss of losing your position is coercion and if I’m a contractor, making a lot of money working for a Sherriff’s office or a police department and told that money is going away, I would certainly make the argument that the Garrity principle can apply. I don’t know of any case law to answer it the one way or another.
Audience Question: Does Garrity apply to governmental bodies who oversee justice agencies?
Rick Hodsdon: There is a case out of Denver that is kind of interesting. I think it probably depends on the oversight. The case out of Denver was a citizen review board who wanted to obtain information from a couple of officers for a citizens’ review investigation. The officers refused to provide a statement of testimony on Fifth Amendment grounds. It was an effort to address and apply the Garrity principle. It all boiled down to the court saying the officers were within their constitutional rights that because if they have given a statement that is self-incriminating because the civilian review board is exactly that and has no employment authority over these officers, the testimony they give to the civilian review board would have been admissible against them in a criminal prosecution. If that civilian review board wants their testimony, they are going to figure out under the laws of Colorado how would you immunize that statement that the officers gave.
Audience Question: Is there an equivalent of Garrity in the private or civilian world?
Rick Hodsdon: There really isn’t. The closest equivalent of Garrity in the private sector or the civilian world would be if the level of coercion, it would have to be a Fifth Amendment issue. It would from a self-incrimination standpoint, it would be a Fifth amendment issue from a due process standpoint. It would be for example, if I have a neighbor who had molested my child and I went over and started beating on him and said I’m going to beat you up until you either confess that you did this or you die. To keep me to stop beating him he says okay I confess, I think this is a due process matter. The courts would find that even though that’s purely private action that that level of coercion would be a due process violation to use. It still Fifth Amendment just a different clause.
Audience Question: Does a mandatory public statement like are there any outstanding suspects implicate Garrity? Does having it being recorded on a body camera also change anything?
Rick Hodsdon: Garrity applies whether it is recorded or not recorded, whether it’s in writing or not writing. Certainly, a body camera when somebody is being ordered to give a statement is going to be easier to prove they were ordered to give a statement. Likewise if on body camera they’re told they have an opportunity to give a statement but they’re not required to that’s going to, from an evidentiary standpoint, help a lot to prove whether there was coercion or not. The full issue of recordings and cameras, those are proof issues as opposed to Garrity implication issues.
Audience Question: Can the home department run the internal and have an outside agency run the criminal investigation? Would that alleviate the chance of cross-contamination?
Rick Hodsdon: Probably not, that’s exactly the scenario that I described earlier where the defense attorney got the judge to order the prosecutor to get access to both the IA file and the criminal file, give them both to the defense counsel and then ended up the case going into the tank. Separating them out is probably not helpful. Now, that’s assuming that the outside agency is doing it at the request of the employer. Let’s say you have a crime, an alleged crime that took place in a different jurisdiction. Department A is doing the criminal investigation of an officer who is an employee of Department B. Department B officer is involved in a domestic and she assaults her husband in one city. She works for a different city. That’s something the two cities should talk about in terms of how to coordinate. I think it’s still risky if the employer, Agency B in my example doesn’t want to interfere with Agency A’s prosecution or potential prosecution. They would still be far safer to just let Agency A run their investigation, let the prosecution run its course rather than try to simultaneously run an investigation and run the risk of cross-contamination. It might be possible to do it. It’s going to be tricky. I would absolutely strongly encourage not just the two police departments in my example but the two police departments and the prosecuting attorney for the prosecutor and the city attorney for the employer. Those four entities should have a good heart to heart to make sure they’re not going to step on each other’s toes.
Audience Question: Can you clarify what is a reverse Garrity again?
Rick Hodsdon: A reverse Garrity is when you essentially tell someone, bring someone or invite someone in for an interview. We’re conducting a criminal investigation, we have reason to believe that you stole a bunch of property out of the evidence room, we are giving you the opportunity to give us a statement. You are under absolutely no obligation to do so. No bad thing will happen to you, there will not be disciplinary consequences if you choose to invoke your right to silence. If you do give us a statement, we are going to take this into account. We are giving this case to the prosecuting attorney to review. If you don’t give us a statement, nothing bad is going to happen, just we won’t be able to give the prosecutor your version of what happened. That’s an example of a reverse Garrity. Many of these folks are narcissistic enough. Frankly, they think they can BS their way out of it.
Audience Question: If a criminal case is pending, let’s say domestic violence, against an officer and they have been advised of their rights. Does an agency need to re-advice for their own IA investigation?
Rick Hodsdon: When you say they have been advised of their rights; I’m assuming perhaps they mean they have advised of their Miranda Rights. Miranda applies for custodial interrogation. If an Internal Affairs agency, if a person is not in custody and this is now an Internal Affairs investigation, Miranda doesn’t come into play. However, if that officer that had been advised of their rights, Miranda, and invoked their right to silence, you bring them in now for the Internal Affairs investigation, if besides invoking their right to silence, if they invoke their right to counsel, saying I’m not going to talk to you folks without talking to my lawyer then you may have some Sixth Amendment complications in that Internal Affairs investigations. We haven’t even talked about the Sixth Amendment complications today but it could create additional problems for the criminal prosecutor. It’s just one more example of why if you have a criminal case, the smartest, safest thing every time that you can pull it off at all, let the criminal case runs its course. If it’s done, it’s done. If the officer is convicted or the employee is convicted, the conviction itself might be a sufficient basis for discipline. In a domestic case, if it’s a police officer, somebody who has to carry a gun for a living, they get convicted of a qualified crime of domestic violence, you don’t even have to prove up the underlying facts anymore. You simply prove up, they longer can meet an essential job function meaning legally carrying a gun. If the officer is not convicted, it doesn’t preclude you from taking disciplinary action. It’s not like double jeopardy. Double jeopardy only prohibits successive criminal prosecutions by the same sovereign. An acquittal in a criminal case doesn’t mean that there won’t be and can’t be employment consequences.
Click Here to Watch a Recording of What Justice Professionals Need to Know about Garrity: Myths & Realities.