INTERVIEW
WARNINGS
(For disciplinary and criminal investigations)
Law enforcement officers and
other public employees who are interviewed in an investigatory or adversary
setting should be advised of the nature of the inquiry.
1. If the inquiry is
administrative or disciplinary, the Garrity Warning is commonly
given. Police officers who are
interviewed in a disciplinary setting should be warned that they are under
investigation for violation of departmental rules, that they are obligated to
give statements for internal purposes, and these answers may not be used
against them in a criminal proceeding. Garrity v. New Jersey, 385 U.S.
493, 87 S.Ct. 616 (1967).
2. If the inquiry is criminal and
the officer is under arrest or in custody, the Miranda Warning should be
given.
3. If the inquiry is criminal but
the officer is not under arrest, the Reverse Garrity Warning or Beckwith
Warning is more appropriate.
(SPECIMEN
GARRITY WARNING)
I wish
to advise you that you are being questioned as part of an official investigation
of the Police Department. You will be asked questions specifically directed and
narrowly related to the performance of
your official duties or fitness for office.
You
are entitled to all the rights and privileges guaranteed by the laws and the
constitution of this state and the Constitution of the United States, including
the right not to be compelled to incriminate yourself (and to have an attorney
of your choice present during questioning).*
I further wish to advise you that
if you refuse to testify or to answer questions relating to the performance of
your official duties or fitness for duty, you will be subject to departmental
charges which would result in your dismissal from the Police Department.
If you do answer, neither your
statements nor any information or evidence which is gained by reason of such
statements can be used against you in any subsequent criminal proceeding. However, these statements may be used
against you in relation to subsequent departmental charges.
The (*) asterisk above calls attention to the words appearing in
brackets. Some courts have held that
there is no "right" to counsel at a disciplinary interview; see the
section on professional representation, which appears later. [AELE strongly recommends allowing employees
representation by counsel during disciplinary interrogations.]
(D.C.
POLICE VERSION)
At
this time I would like to question you concerning a report of _____. This
questioning concerns criminal matters.
You
are not under arrest. You are suspected
of ________. I am going to advise you
of your right as established by the
Supreme Court in the cases of Miranda v. Arizona and Garrity v. New
Jersey.
You
have the right to remain silent. You are not required to say anything at any
time or to answer any questions. If you do make a statement or answer
questions, anything you say can be used against you in a court of law.
You
have the right to talk to a lawyer for advice before making a statement or
answering any questions and you may have a lawyer present with you during
questioning if you wish. If you do want a lawyer but cannot afford one, a
lawyer will be provided for you. If you
want to answer questions now without a lawyer present, you still have the right
to stop answering at anytime. You also have the right to stop answering at any
time until you talk to a lawyer.
Even
though you are an employee of the Police Department and ordinarily you would be
required by regulations to answer questions put forth to you by a superior
officer regarding your official duties, in this instance those regulations did
not apply, and you will not be required to answer. If you do not wish to answer any of these questions, your refusal
to answer alone will not subject you to disciplinary action by the Police
Department.
Do you
understand that I want to question you about criminal matters?
Do you
understand that you do not have to make a statement or answer any questions?
Do you
understand that if you do make a statement or answer questions, anything you
say which incriminates you may be used against you in a court of law?
Do you
understand that you have the right to talk to a lawyer and have one present
during questioning?
Do you
understand that if you do not wish to make a statement or answer questions,
your desire to remain silent alone will not subject you to disciplinary action
by the Police Department?
Do you
have any questions concerning the rights I have just explained to you?
Do you
wish to talk to a lawyer?
Do you
wish to answer questions at this time?
Note: Some lawyers have called the Garrity
Warning a Reverse Garrity Warning. If the warning informs an
employee that he or she must answer questions or face disciplinary action, it
is a Garrity Warning. The above Reverse
Garrity Warning is given when a voluntary statement is sought and the
employee is not in custody; the answers would be admissible in a criminal
prosecution.
You
have a right to remain silent if your answer may tend to incriminate you.
Anything you say may be used
against you as evidence later in an administrative proceeding or any future
criminal proceeding involving you. If you refuse to answer the questions posed
to you on the grounds that the answer may incriminate you, you cannot be
discharged solely for remaining silent. However, your silence can be considered
in an administrative proceeding for its evidentiary value that is warranted by
the facts surrounding your case.
** This warning, based on Beckwith
v. U.S., 425 U.S. 341, 96 S.Ct. 1612, 1976 U.S. Lexis 147 (1976), was
adopted by the Federal Services Impasses Panel in Treasury, Bur. of Engrv.
v. C-201 NTEU, #99 FSIP 96, 1999 FSIP Lexis 41.
The Beckwith case did not
mandate warnings; the 8-1 ruling simply held that a criminal suspect, who was
interviewed in his home but not placed under arrest, was not entitled to
receive the Miranda warnings.