1. Kristi Shute Indiana Office of Inspector General

2. Kristi Shute kshute@ig.in.gov (317) 234-3993 Office of Inspector General 315 West Ohio Street Room 104 Indianapolis, IN 46202 www.in.gov/ig

3. The Bottom Line: A public employee’s statement, given during an internal investigation, cannot be used against him in a later criminal proceeding.

4. 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

5. No! The choice between : – Losing your job OR – Self-incrimination Constitutes coercion ! Therefore, the answers were not voluntary!

6. Protection of the Individual under the 14 th 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

7.  Public employee  Explicit threat of loss of job  Criminal proceeding

8.  Police Officer appeared under Grand Jury subpoena  Refused “waiver of immunities”  Fired for refusal to waive immunity

9.  Unless given use immunity, cannot be fired for refusal  If use immunity given, may be fired if continued refusal to answer  Specific, directed questions

10.  Sanitation employees summoned to testify re: corruption  Fired when refused to relinquish 5 th amendment rights

11.  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

12.  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

13.  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

14.  Extends Garrity to contractors

15.  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.

16.  Choice: Assert 5 th 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

17.  Notice: Not a public employee involved

18.  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

19.  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

20.  Police Officer charged with DUI  Argued to bar admission of breath test results arguing that he provided sample only under threat of termination

21.  Fifth Amendment applies only to testimonial or communicative evidence, not physical evidence  Bisard

22.  Fire Dept Capt accused of sexual harassment  2 hearings held resulting in termination

23.  Garrity does not protect public employees from having to answer questions concerning their conduct at their own termination hearings in non-criminal investigation

24.  FSSA Caseworker  D interviewed separately: OIG special agents then agency personnel

25.  Motion to Suppress  “Fruits” inadmissible also

26.  Internal investigation?  Criminal investigation?  Training key

27.  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

28. Thank you! Office of Inspector General 315 West Ohio Street Room 104 Indianapolis, IN 46202 (317) 232-3850 www.in.gov/ig