(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.