Police Officers Convicted on the Grounds That Their Statements Were Coerced

In Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), several police officers were the target of an investigation concerning the fixing of traffic tickets. Before being questioned, each officer was warned: (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but; (3) that if he refused to answer he would be subject to removal from office. the officers answered the questions; however, some of their answers were subsequently used in criminal proceedings against them. The officers were convicted and appealed on the grounds that their statements were coerced, by reason of the fact that, if they refused to answer, they could lose their positions with the police department. In agreeing with the officers, the United States Supreme Court stated: "The choice given the officers was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, 384 U.S. 436, 464-465, 86 S. Ct. 1602, 16 L. Ed. 2d 694, is 'likely to exert such pressure upon an individual as to disable him from making a free and rational choice.' We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions." Garrity, 385 U.S. at 497-98, 17 L. Ed. at 565-66, 87 S. Ct. at 618-19. The Supreme Court ultimately concluded that "the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic." Garrity, 385 U.S. at 500, 17 L. Ed. at 567, 87 S. Ct. at 620. Since the Supreme Court's decision in Garrity, federal and state courts asked to apply its holding to the facts before them have developed two distinct lines of authority. The first line of authority stems from United States v. Indorato, 628 F.2d 711 (1st Cir. 1980), and holds that Garrity immunity will be applied only in situations where the record reveals an explicit or overt threat of mandatory termination for a failure to answer questions. See: State v. Litvin, 147 N.H. 606, 794 A.2d 806 (2002); People v. Coutu, 235 Mich. App. 695, 599 N.W.2d 556 (1999); People v. Bynum, 159 Ill. App. 3d 713, 512 N.E.2d 826, 111 Ill. Dec. 437 (1987); Commonwealth v. Harvey, 397 Mass. 351, 491 N.E.2d 607 (1986). The police officer in Indorato was questioned by both a superior officer and the Federal Bureau of Investigation (FBI). The officer was subsequently convicted of several criminal offenses including perjury. On appeal, the officer, relying upon Garrity, claimed that his statements were coerced and inadmissable. In rejecting the officer's claim of Garrity immunity, the court stated: "In this case, there was no explicit 'or else' choice and no statutorily mandated firing is involved. We do not think that the subjective fears of defendant as to what might happen if he refused to answer his superior officers are sufficient to bring him within Garrity's cloak of protection. Here, the officer did not claim the privilege. He was not told that he would be dismissed if he failed to answer the questions asked. He was not asked to sign a waiver of immunity. There was no statute mandating dismissal for refusal to answer hanging over his head. the officer, here, was not, as in Garrity, put 'between the rock and the whirlpool,'; he was standing safely on the bank of the stream." Indorato, 628 F.2d at 716-17.