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Sunday, February 28, 2010

Miranda Rights- The Garrity Exception For Police Officers

Recently the United States Supreme Court handed down two cases that addressed Miranda Rights and if  police officers violated an individual's right against self incrimination under the Fifth Amendment. The rulings in both cases were favorable to the prosecution. Courts have continued to carve out exceptions to Miranda Rights; ruling it doesn't apply, or simply found that the person waived their Miranda Rights. Many people are surprised to know that police officers are often given broader protection against self incrimination than the average citizen.

I recently read a post addressing this issue from the Simple Justice blog about the Garrity Rule. The Garrity rule governs internal investigations for specific governmental employees; under the Garrity rule a public employee can be forced to admit criminal activity during a police investigation because they could be disciplined or fired for not speaking. However, those incriminating statements cannot be used in a prosecution of the criminal case. Each state has different laws- some are more favorable to police officers than others. For example in California, the Government Code contains the Peace Officers Bill of Rights which require, among numerous other provisions, that a police officer's interrogation(s) be conducted at a reasonable hour and any off duty officer will be paid for being present at the interview during off duty hours. North Carolina does not  have such police friendly legislation as this but the Garrity Rule is still in effect.

In light of recent events in Charlotte, including a Mecklenburg County Police Officer accused of multiple counts of sexual assaults and another police officer facing domestic violence charges, this portion of the Simple Justice Blog gave me thought:
So why are police officers given special treatment? Is a crime by a police officer less of a crime, less harmful, less significant than a crime committed by anyone else? Is the harm to the victim less painful? Is the harm to society less worthy of prosecution? It might well be argued that a crime committed by a cop is more significant, more blameworthy. After all, we give cops an enormous amount of power and authority, and if they can't be trusted to conduct themselves lawfully, it's a far bigger problem than crime in general. If anything, cops should be held to a higher standard of behavior by virtue of their oath and position. 
Every state has different protections. I should note that North Carolina does not have the generous statute that California affords police officers. However, it will be an uphill battle for a Charlotte criminal defense attorney to get access to internal investigation records from any police officer investigation. Hypothetically, if a person was facing criminal charges in Mecklenburg County, such as a DWI/DUI,  and the arresting police officer was subject to an ongoing internal investigation by Charlotte Mecklenburg Police Department, the criminal defendant wouldn't necessarily have access to police officer statements made during the internal investigation which could potentially reflect a highly compromised investigation.

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posted by Carilyn Ibsen at

2 Comments:

Anonymous Anonymous said...

The answers to your questions should be obvious. The Garrity warning is not an attempt to in any way let cops off easier than non-cop citizens who are suspected of committing a crime. Cops may be compelled to answer questions in an administrative investigation; i.e. a cop cannot refuse to answer such questions posed by his superior officers, on penalty of termination. However, cops have the SAME rights as any other citizen to not incriminate themselves. Thus, cops cannot be COMPELLED to answer questions which would cause them to be held criminally liable. The mechanism to accomplish both of these things, that is compelling cops to answer questions while at the same time protecting their rights against self-incrimination, is the Garrity ruling and warning, which provides that COMPELLED answers cannot be used in a criminal prosection, but only in administrative proceedings, i.e. punishment up to and including termination. Posted by a 33-year cop; about 1/3 of those years my assignment included conducting internal investigations.

August 4, 2010 at 3:19 AM  
Blogger Carilyn Ibsen said...

Thank you for the information and your perspective.

August 4, 2010 at 7:01 AM  

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