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University of Florida Journal of Law & Public Policy

Jacob Abel

Abstract

When a public employee is asked to testify against themselves or face termination, they are presented with a trilemma. They may choose to respond to questions falsely, answer truthfully, and suffer criminal sanctions, or remain silent and lose their job. In Garrity v. New Jersey, the Supreme Court resolved this trilemma by ruling that, when a public employee is compelled to answer questions, the Fifth Amendment grants the employee immunity for their testimony. The Supreme Court “solved” the trilemma again, in Gardner v. Broderick, by saying that an employee who is fired for invoking their Fifth Amendment right against self-incrimination can be reinstated.

Together, Garrity and Broderick mean that both speaking and silence may protect public employees. These decisions suggest a desire to maintain the efficacy of internal investigations. The Court has suggested that when an employee is asked questions about their employment, and they are neither implicitly nor explicitly asked to waive their Fifth Amendment rights, they may be terminated. But this accommodation for internal investigations comes at the expense of formal criminal proceedings. Careless or malicious investigators can give public employees broad immunity for statements they make to investigators. This places a heavy burden on prosecutors to prove they did not benefit from the employee’s statements in their prosecution. The problem is especially concerning in law enforcement, where internal investigations have proven to be an ineffective method of curbing offensive police conduct.

In light of the ineffectiveness of internal investigations, the burden on criminal investigations, and the legal discrepancy between the rights of a public employee and private citizens, this Note argues that Garrity should be overturned, and internal investigators should not be allowed to condition employment on testimony. Public employees should be required to remain silent in the face of improper coercion.

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