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How are public corruption investigations different from other cases?

Posted by Ed McClees | May 22, 2023

Defending public corruption cases requires a comprehensive understanding of the unique challenges posed by these cases. These cases involve unique legal issues that are often misunderstood by lawyers who do not routinely represent public officials or public servants accused of wrongdoing.

One of the unique aspects of public corruption cases occurs at the investigation stage.  The United States Supreme Court case of Garrity v. New Jersey (1967) established important principles regarding the rights of public employees when being questioned during internal investigations or criminal proceedings. The case specifically dealt with the issue of self-incrimination under the Fifth Amendment of the U.S. Constitution.

In Garrity, the Court considered the circumstances in which statements made by public employees during investigatory interviews could be used against them in subsequent criminal proceedings. The case involved police officers who were being investigated by the state's Commission of Investigation. The officers were given a choice between answering the questions posed to them or facing dismissal from their positions. They were also assured that any statements made would not be used against them in a criminal prosecution but could be used in administrative proceedings.

The Supreme Court held that the statements made by the police officers were not voluntary because they were obtained under duress, with the threat of job loss. The Court concluded that the officers' statements were coerced and, therefore, could not be used against them in a criminal prosecution. The Court emphasized the importance of protecting an individual's constitutional rights against self-incrimination, even in cases involving public employees.

The key principle established by Garrity is known as the "Garrity Warning.” It requires that public employees be given a specific warning before being questioned during an internal investigation or administrative proceeding. The warning informs employees that if they choose to answer questions, their statements cannot be used against them in any subsequent criminal prosecution. However, failure to cooperate in the investigation may result in disciplinary action, such as termination.

The Garrity warning strikes a delicate balance between protecting the rights of public employees and ensuring the integrity of investigations. It recognizes that individuals should not be compelled to incriminate themselves but also acknowledges the legitimate need for employers to investigate potential misconduct and maintain the public's trust in their employees.

It's important to note that Garrity applies to public employees and their constitutional rights against self-incrimination. It does not extend to private sector employees who are not protected by the Fifth Amendment in the same way.

About the Author

Ed McClees

Ed is a criminal trial lawyer who is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a former Harris County District Attorney where he served as chief of the Organized Crime Section, prosecuting cases involving complex organized criminal activities, including Fr...

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