Compelled Statements from Police Officers and Garrity Immunity

76 New York University Law Review 1309 (2001)In this Article, Professor Steven Clymer describes the problem created when police departments require officers suspected of misconduct to answer internal affairs investigators' questions or face job termination. Relying on the Supreme Court's decision in Garrity v. New Jersey, courts treat such compelled statements as immunized testimony. That treatment not only renders such a statement inadmissible in a criminal prosecution of the suspect police officer, it also may require the prosecution to shoulder the daunting and sometimes insurmountable burden of demonstrating that its physical evidence, witness testimony, and strategic decisionmaking are untainted by the statement. Because police internal affairs investigators decide whether to take and disseminate compelled statements from police officers, prosecutors are powerless to prevent the problem. Yet, as Professor Clymer shows, the Garrity doctrine as applied by lower courts, has an uncertain foundation. The Supreme Court never has addressed the full range of protections that courts often bestow on compelled statements, such as prohibitions on nonevidentiary and indirect evidentiary use. Furthermore, these stringent use restrictions are difficult to square with the less robust protection that courts afford coerced confessions and with the need to address police criminality effectively. While rejecting the proposition that the Court should overrule Garrity, Clymer argues that courts should relax prohibitions on collateral uses of compelled statements. Clymer also suggests that policymakers require police departments to use sanctions less severe than job termination to prompt police officers to answer questions during administrative investigations. Threats of lesser sanctions often will be sufficient to encourage police officers to answer and will do so without triggering Garrity immunity. This approach fairly balances the competing interests of police departments, police officers, and prosecutors in cases of alleged police criminality.