INTERVIEW OF PUBLIC EMPLOYEES REGARDING CRIMINAL MISCONDUCT ALLEGATIONS - CONSTITUTIONAL CONSIDERATIONS - CONCLUSION

• NCJ Number: 68690
• Journal: FBI Law Enforcement Bulletin Volume: 49 Issue: 4 Dated: (APRIL 1980) Pages: 27-31
• Author(s): J R DAVIS
• Date Published: 1980
• Length: 5 pages
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America

Annotation

THIS ARTICLE SUGGESTS PROCEDURES FOR INTERVIEWING PUBLIC EMPLOYEES REGARDING CRIMINAL MISCONDUCT ALLEGATIONS.

Abstract

IN PURSUING INQUIRIES INTO ALLEGATIONS OF CRIMINAL MISCONDUCT BY PUBLIC EMPLOYEES, THE GOVERNMENT IS ACTING BOTH AS AN INVESTIGATOR AND PROSECUTOR AND AS AN EMPLOYER. THIS DUAL ROLE IS PARTICULARLY APPARENT IN THE CASE OF A LAW ENFORCEMENT AGENCY, AND OFTEN CAUSES CONFUSION IN THE MINDS OF BOTH THE INVESTIGATOR AND THE EMPLOYEE. OFTEN IT IS IMPOSSIBLE FOR THE INTERVIEWER TO PURSUE BOTH ROLES SIMULTANEOUSLY. HE MUST BE SURE THAT NO IMPROPER COERCION IS EXERTED ON THE EMPLOYEE AND ALSO THAT FULL MIRANDA WARNINGS (OR SOME MODIFIED WARNING) BE GIVEN TO EMPLOYEE. TO AVOID UNNECESSARY PROBLEMS, BEFORE UNDERTAKING THE INTERVIEW, THE EMPLOYER SHOULD DETERMINE WHETHER THE GOAL OF THE INTERVIEW - I.E., OBTAINING A STATEMENT USABLE IN CRIMINAL PROCEEDINGS, OR RECEIVING THE EMPLOYEE'S FULL ACCOUNT OF HIS WORK-RELATED ACTIONS. FOR INTERVIEWS FOR CRIMINAL INVESTIGATIVE PURPOSES, THE EMPLOYEE SHOULD BE GIVEN SOME WARNING OF HIS FIFTH AMENDMENT RIGHTS AND HE SHOULD BE ADVISED THAT ASSERTING HIS CONSTITUTIONAL RIGHTS AND REFUSING TO ANSWER INCRIMINATING QUESTIONS WILL NOT LEAD TO ADVERSE ACTION AGAINST HIM. IN INTERVIEWS FOR ADMINISTRATIVE PURPOSES ONLY, THE EMPLOYEE SHOULD BE ADVISED THAT: (1) THE PURPOSE OF THE INTERVIEW IS TO SOLICIT RESPONSES THAT WILL ASSIST IN DETERMINING WHETHER DISCIPLINARY ACTION IS WARRANTED, (2) THAT ALL QUESTIONS RELATING TO THE PERFORMANCE OF OFFICIAL DUTIES MUST BE ANSWERED FULLY AND TRUTHFULLY, AND (3) THAT NO INFORMATION GAINED THIS INTERVIEW MAY BE ADMISSIBLE AGAINST THE EMPLOYEE IN ANY CRIMINAL PROCEEDING. THERE IS NO RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT IN SUCH ADMINISTRATIVE INTERVIEWS. INTERVIEWS OF PUBLIC EMPLOYEES REGARDING ALLEGATIONS OF CRIMINAL MISCONDUCT REQUIRE CAREFUL PLANNING, AND IT IS ESSENTIAL THAT THE EMPLOYER CONSIDER BEFOREHAND THE PURPOSE OF THE INTERVIEW AND THEN TAILOR THE APPROACH TO COMPLY WITH CONSTITUTIONAL PRINCIPLES. AGENCIES SHOULD ALSO CONSULT WITH LEGAL COUNSEL IN FORMULATING GUIDELINES FOR EMPLOYEE INTERVIEWS. FOOTNOTES ARE PROVIDED.