NCJ Number
142402
Journal
FBI Law Enforcement Bulletin Volume: 62 Issue: 5 Dated: (May 1993) Pages: 26-32
Date Published
1993
Length
7 pages
Annotation
This article examines legal issues in compelled interviews in which public employers demand answers from employees when the interview impacts on the employees' fitness for duty, integrity, or judgment.
Abstract
As government actors, public employers must be concerned with the employees' fifth amendment due process protection and the privilege against self-incrimination. In Garrity v. New Jersey (1967), the U.S. Supreme Court ruled that statements obtained from employees who are forced to choose between answering questions that may be incriminating and continued employment cannot be used against those employees in subsequent criminal proceedings. On the other hand, employees may be compelled to answer questions related to their employment or face dismissal if, by doing so, they are not being compelled to incriminate themselves. Employers should keep an accurate record of the information provided to employees prior to the interview. The form that advises employees of their right to remain silent should make it absolutely clear that the matter under investigation could result in criminal prosecution. Employers should also ensure that compelled interviews are incident specific and that employees are informed of the specific incident under investigation. Employers' compelled questions should be specifically, directly, and narrowly related to the performance of employees' official duties. Unless conferred by State law or union contract, employees have no legal right to consult with an attorney or to have an attorney present during a noncustodial compelled interview. Finally, compelled statements can be used to discipline employees, but any other use should be cleared through a legal advisor or prosecutor. 39 notes