In most departments, three principles appear well settled: an officer can be ordered to participate in such an investigation; he or she can be required to give a statement, oral or written, at times recorded, transcribed and sworn; and whatever statements are made can be used against the officer in later disciplinary hearings.

Under the Fifth and Fourteenth Amendments to the United States Constitution, the officer has the right, as does any citizen, to remain silent if he or she faces possible criminal prosecution and is protected from self-incrimination under the doctrines set forth in Garrity v. New Jersey, 385 U.S. 493 (1967), and Spevack v. Klein, 385 U.S. 551 (1956). However, in most cases, there is no intent nor desire by the department nor internal affairs to prosecute the officer under questioning, and no intent whatsoever to use the statement given in a criminal prosecution. Therefore, the common rule and practice is that the officer must cooperate upon pain of discipline.

This makes a great many officers uncomfortable. The recent increase, even likelihood, of civil action against the officer and his department - see Charles E. Friend, Police Rights: Civil Remedies for Law Enforcement Officers (Callaghan, 1987) - and the fact that internal affairs investigation files, even "completely confidential" files, are increasingly held discoverable in civil litigation, make the need to be careful with regard to such statements an increasingly important issue in terms of protecting both the individual officer and the police department from liability.

What advice should be given to police officers who have been ordered to give a statement as part of an internal affairs investigation? The Houston Police Patrolmen's Union, IUPA, and its attorney Richard Cobb, have developed a standard practice in such situations. This practice has also been implemented by IUPA locals in Greensboro, NC; Alexandria, VA; and a number of other jurisdictions. This practice cannot prevent the statement from being used in civil litigation against the officer and the Department, but it may minimize the harm even a careful statement may do.

Officers in such situations should be informed that they have the right to make a statement protecting their rights. In at least one jurisdiction, such a statement has been printed on the internal affairs statement forms, in others, the statement has been printed on wallet-sized cards available for use by members. Finally, a number of police officers have read out the statement when giving taped interviews or written it on all statements they sign.

Note: Recent cases suggest that internal affairs does not have to inform you of these rights. To invoke your Garrity rights, you must be ordered to give a statement and you must be threatened with termination for failure to provide that statement. If you give a statement without having been ordered to do so, or if you were not threatened with termination for failure to give that statement, your Garrity rights will not be protected and your statement can be used against you in subsequent criminal proceedings.

Constitutional Protection Statement