The Garrity rights, Garrity rule or Garrity warning is a
protection that is utilized by many law enforcement officers each year.
Simply, Garrity is an invocation that may be made by an officer being
questioned regarding actions that may result in criminal prosecution.
This article is geared toward law enforcement, but
the Garrity Warning is also available for other employees of state and
local government organizations.
The Garrity Warning is often misunderstood as it is
inconsistently applied throughout the country. In some states it
may be read to the employee before questioning begins. In other
states, the employee must invoke his or her Garrity Rights.
Simply, our Constitution protects everyone from
having to criminally incriminate themselves. We cannot be forced
to testify against ourselves.
By invoking the Garrity, the officer is invoking his or her right
against self incrimination. Any statements made after invoking Garrity,
may only be used for department investigation purposes and not for
criminal prosecution purposes.
The Garrity Rule stems from the court
case Garrity v. New Jersey, 385 U.S. 493 (1967), which was decided in
1966 by the United States Supreme Court. It was a traffic ticket fixing
case of all things.
Officers were advised that they had to answer questions subjecting them
to criminal prosecution or lose their jobs. The Court held that this was
Technically, there are two prongs once Garrity has been triggered.
First, if an officer is
compelled to answer questions as a condition of employment, the
officer's answers and the fruits of those answers may not be used
against the officer in a subsequent criminal prosecution. Second, the
department becomes limited as to what they may ask. Such questions must
be specifically, narrowly, and directly tailored to the officer's job.
Thus, the basic thrust of the Garrity Rights is that a department member
may be compelled to give statements under threat of discipline or
discharge but those statements may not be used in the criminal
prosecution of the individual officer. This means that the Garrity Rule
only protects a department member from criminal prosecution based upon
statements he or she might make under threat of discipline or discharge.
Also, the Garrity Rule is not automatically triggered simply because
questioning is taking place. The officer must announce that he or she
wants the protections under Garrity. The above statement should be
prepared in writing, and the officer should obtain a copy of it. If a
written statement is being taken from an officer, the officer should
insist that the Garrity Warning actually be typed in the
statement. Consult your attorney and union delegate for the laws
regarding Garrity in your state before providing any statement.
In New Jersey, the Garrity Warning is actually
covered in the New Jersey Attorney General Guideline on
Internal Affairs. Simply, if an officer being questioned
invokes his Garrity Rights, the agency can contact the county
prosecutor. The county prosecutor can elect to grant use
immunity which will prohibit any part of the officer's statement
from being used against him or her in a criminal proceeding. But,
if use immunity is granted, the officer is required to answer the
Below is an excerpt from the Guideline:
If the subject officer states that he refuses
to answer any questions on the grounds that he may incriminate
himself in a criminal matter, even though the investigators do not
perceive a criminal violation, the department should discontinue the
interview and contact the county prosecutor.
If the department wants to continue its
administrative interview, and the county prosecutor agrees to grant
use immunity, the department shall advise the subject officer, in
writing, that he or she has been granted use immunity in the event
his or her answers implicate him or her in a criminal offense. The
officer must then answer the questions specifically related to the
performance of his or her official duties, but no answer given by
him or her, nor evidence derived from the answer, may be used
against the officer in a criminal proceeding. At this point, if the
officer refuses to answer, he or she is subject to disciplinary
charges for that refusal which can result in dismissal from the
It is, of course, always recommended to seek advice from an attorney
qualified in the field before answering any formal questions.