© 2026 The Internal Affairs Intel Report: Public Safety & HR Resources.
This website uses cookies
Read our Privacy policy and Terms of use for more information.
INVESTIGATOR'S GUIDE
A compelled statement can resolve your administrative case and sink the criminal one. Here is how the rule works, when it reaches HR interviews, how cases get tainted, and the safeguards that keep a dual-track investigation clean.
ON THIS PAGE
01 · THE RULE IN 60 SECONDS
385 U.S. 493 (1967)
A statement compelled under threat of job loss:
1 Is inadmissible in a criminal prosecution
2 Cannot be used directly
3 Cannot be used indirectly
4 Cannot generate investigative leads
406 U.S. 441 (1972)
The government must prove that every piece of criminal evidence came from a source wholly independent of the compelled statement.
What that means for you: the burden sits with the agency. If you cannot document who saw the statement and where each piece of evidence came from, assume the criminal case is exposed.
02 · FOR HR INVESTIGATORS
Garrity is not a police-only rule. It protects public employees from the government as employer. An HR investigator at a city, county or state agency triggers it the same way IA does: by requiring answers under threat of discipline.
PUBLIC AGENCY · COMPELLED
Answers can be used for discipline, not for a criminal case.
PUBLIC AGENCY · TRULY VOLUNTARY
If the employee was told refusal carries no penalty and reasonably believed it.
PRIVATE EMPLOYER ACTING ALONE
The Fifth Amendment restrains government, not private companies.
PRIVATE EMPLOYER + PROSECUTORS
When the government is involved enough that the questioning is attributable to it.
In Uniformed Sanitation Men v. Commissioner of Sanitation (1968), the Supreme Court applied the same protection to sanitation workers, holding that public employees are entitled to the Constitution's protection like anyone else. Courts have extended Garrity-type protection to private workplaces only where the investigation was fairly attributable to the government (United States v. Stein, 2d Cir. 2008; United States v. Connolly, S.D.N.Y. 2019).
You don't have to say "you'll be fired." Courts ask whether the employee actually believed refusing would cost them their job, and whether that belief was objectively reasonable (United States v. Friedrick, D.C. Cir. 1988; United States v. Vangates, 11th Cir. 2002). A notice that says "cooperation is mandatory," or a policy that makes refusal a disciplinary offense, can be enough. Decide which kind of interview you are running and say so on the record.
An agency cannot fire an employee for invoking the Fifth Amendment or for refusing to waive immunity (Gardner v. Broderick, 1968). But once the employee is advised that answers can't be used criminally, the agency may discipline a refusal to answer questions "specifically, directly, and narrowly relating to the performance of their official duties" (Uniformed Sanitation Men).
In LaChance v. Erickson (1998), the Supreme Court held that an agency may discipline an employee for false statements made during a misconduct investigation. The employee's lawful choices are to answer honestly or to remain silent. Your advisement should say that compelled answers carry no protection for false statements.
▪ Ask whether the allegation could also be a crime: theft, assault, sexual misconduct, falsified records. If yes, coordinate with IA and legal counsel before you interview.
▪ Decide whether the interview is voluntary or compelled, and state it on the record.
▪ If compelled, use your agency's counsel-approved written advisement and get a signed acknowledgment.
▪ Keep questions tied to the employee's duties and the allegation.
▪ Treat your notes and recordings like IA files: restricted access, logged exposure, no informal sharing with criminal investigators.
▪ Remember an HR interview can be the one that taints a criminal case. The safeguards below apply to you too.
Sources for this section: Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280 (1968); Gardner v. Broderick, 392 U.S. 273 (1968); LaChance v. Erickson, 522 U.S. 262 (1998); United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988); United States v. Vangates, 287 F.3d 1315 (11th Cir. 2002); United States v. Stein, 541 F.3d 130 (2d Cir. 2008); United States v. Connolly (S.D.N.Y. 2019); FDLE Legal Bulletin, Criminal vs. Administrative Investigations.
03 · RUNNING THE COMPELLED INTERVIEW
When an allegation carries possible criminal exposure, treat the interview as one half of a dual-track investigation from the first minute.
▪ Check whether the allegation meets your policy's dual-track trigger, such as force with serious injury or a possible criminal statute violation.
▪ Get authorization from the position your policy designates, plus written sign-off from legal counsel.
▪ Confirm the administrative case has its own case number.
▪ Confirm the criminal investigator is on a clean team with no access to your file.
▪ Read the scripted Garrity advisement into the record.
▪ Get a signed acknowledgment before questioning begins.
▪ Keep the interview administrative. A criminal investigator giving Miranda partway through an interview that began with compulsion can carry the compulsion forward.
▪ Federal agencies: handle Kalkines warnings with the same separation from the criminal team.
▪ Store the recording and statement in the segregated IA system, never the criminal evidence vault.
▪ Limit access to the assigned investigator, IA commander and legal counsel.
▪ Log every person who views or is briefed on the statement, in real time.
▪ Don't discuss the admission informally, including with command staff or detectives.
04 · HOW CASES GET TAINTED
None of these require bad intent. Most start with someone trying to be helpful.
What happens: an officer admits striking a handcuffed subject during a Garrity interview, and IA forwards the full file to criminal investigators.
The taint: the criminal case rests on the compelled admission, its timeline is shaped by it, and derivative evidence risks suppression.
What happens: an employee's compelled statement mentions a camera location, and criminal investigators retrieve that footage.
The taint: the statement led investigators to the evidence. The footage is derivative, and the government must prove it was found independently.
What happens: an IA investigator tells a detective about the admission in conversation, and the detective plans the interview around it.
The taint: no document changed hands, but the criminal strategy was shaped by compelled information.
What happens: the chief reviews the compelled transcript, then references the admission in grand jury testimony.
The taint: charging decisions are influenced by compelled material and the grand jury process is exposed.
What happens: an interview opens with a compulsion warning, a criminal investigator later gives Miranda, and the employee keeps talking.
The taint: the earlier compulsion may carry forward into the "voluntary" statement, raising suppression risk.
What happens: a Kalkines warning is given in a federal administrative interview, and the statement is shared with the criminal team.
The taint: cross-access between the administrative and criminal files raises the risk of Kastigar litigation.
05 · SAFEGUARDS
Defines trigger criteria; names by title who may authorize a compelled interview and requires written sign-off from counsel; requires a scripted advisement and signed acknowledgment; reviewed every year with counsel against current Garrity and Kastigar case law.
IA opens IA-2026-0047 while the detective bureau independently opens CR-2026-1183. The records system flags ADMIN or CRIMINAL, correspondence cites only its own track, and evidence intake requires a track before a tag is issued.
Compelled statements live in a standalone IA platform with its own login. Administrative-only footage is tagged out of criminal search, transfers require a supervisor-approved taint review, and audit logs alert on criminal-track access.
Only the assigned IA investigator, IA commander and legal counsel can open compelled statements. Criminal investigators are technically blocked, not merely told. Changes need written justification, and access is revoked on reassignment.
Each criminal investigator signs before assignment that they have not seen or been briefed on the statement, renewed at each milestone, kept by the IA commander in the IA file, with language reviewed by counsel.
A separate detective leads the criminal case through a different chain of command, stays out of IA briefings and emails, builds probable cause only from independent sources, and is named in a wall memo in both files.
One master log kept by the IA commander records name, role, date and reason for every access, in real time, cross-checked against audit trails. Accidental exposure is logged immediately with the fix.
06 · SELF-CHECK
If you can't answer yes to all six, start with the gaps before your next compelled interview. Subscribers get the full 30-question self-check free.
Q1 Do we have a written dual-track policy that defines when one opens?
Q2 Could a criminal investigator open our IA file today, or are they only told not to?
Q3 Does every criminal investigator on a parallel case sign a non-exposure certification?
Q4 Is our exposure log kept in real time, or reconstructed after the fact?
Q5 Who in command has read compelled transcripts, and could that reach a charging decision?
Q6 When did legal counsel last review our procedure against current Garrity and Kastigar case law?
TRAINING
Next sessions: Georgia, Nov 2 · Las Vegas, Dec 7.
See training dates →IA GUIDE · $25
Separate the criminal and administrative tracks before compelled questioning, with a ten-point readiness check.
See the IA Guides →Important: this guide is for training and educational purposes only. It is a general overview of Garrity v. New Jersey and Kastigar v. United States and is not legal advice or a substitute for a licensed attorney. Consult your agency's legal counsel on any matter involving a compelled statement or dual-track investigation. Your agency's policies and procedures govern the actions of your personnel. Source: PATC Internal Affairs Training Reference, Tainted Garrity Concerns; Section 02 draws on the court decisions listed in its sources.
New decisions on compelled statements land in the newsletter first.