You’re in Trouble: Now What?
Dr. Richard Weinblatt
Know Your Legal Precedents
Departments generally go with a standard that has been backed up by court decisions such as U.S. Supreme Court cases Garrity v. New Jersey, (1967) and, for the feds, Kalkines v. United States, (1973). Officers under an administrative investigation can refuse to answer questions. This is really applicable if there is the belief that a criminal component could arise. However, refusing to answer questions may form the evidentiary basis for charges. Officers, like other governmental workers, can be compelled to answer within an administrative context, as that is a condition of employment.
It is important in this process is that the department should also explain that this an administrative process and that any criminal charges that could arise from the officer’s acts or omissions are to be handled separately from the internal affairs investigation. Those matters should be referred to an appropriate criminal investigation unit or, better yet to avoid the appearance of a conflict of interest, another agency. The idea here is that the employee should not be forced to choose between his or her Constitutionally protected fifth amendment right against self-incrimination (think Miranda v. Arizona) and his or her job.
The Garrity Warning should be in writing. Some agencies issue it and have the target officer sign it as a matter of course. Others do so only when they feel there is a good chance that a criminal component may arise out of the officer’s conduct. Importantly, false statements are not protected against criminal prosecution during any part of the investigation.
Most agencies will not allow legal counsel during the administrative investigation interview. Some will, however, allow you to have a non-involved supervisor present. Others, particularly in the Northeast, will allow you to have a union representative accompany the officer. Agencies tend to audiotape or videotape the interview.
Be aware that property owned by the employing governmental entity is subject to search. Unless otherwise restricted by local protocol, most agencies can search your departmentally issued equipment including the patrol car, locker, and computer.