PUBLIC SERVICE - SELF-INCRIMINATION VS. THE PUBLIC'S RIGHT TO AN ACCOUNTING

• NCJ Number: 7919
• Journal: JOURNAL OF CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE Volume: 63 Issue: 3 Dated: (SEPTEMBER 1972) Pages: 325-329
• Author(s): J M FLAUM; J A CARR
• Date Published: 1972
• Length: 5 pages
• Corporate Author: Williams and Wilkins Co
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

REVIEW OF CASES SHOWS THAT A PUBLIC EMPLOYEE CAN BE DISMISSED BY ADMINISTRATIVE ACTION IF HE REFUSES TO TESTIFY AFTER BEING GRANTED IMMUNITY FROM PROSECUTION.

Abstract

ALTHOUGH COMMONLY REFERRED TO AS THE PROTECTION AGAINST SELF-INCRIMINATION, THE FIFTH AMENDMENT LITERALLY PROVIDES THAT NO PERSON SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF. HISTORICALLY, THE AMENDMENT HAS BEEN CONSTRUED AS APPLICABLE ONLY WHERE THE WITNESS HAS REASONABLE GROUNDS TO FEAR FUTURE CRIMINAL CHARGES. ONCE IMMUNITY HAS BEEN CONFERRED, THE OBJECTIVE OF THE FIFTH AMENDMENT PRIVILEGE HAS BEEN ACHIEVED BY ELIMINATING THE POSSIBILITY THAT THE WITNESS MIGHT SUFFER SOME CRIMINAL SANCTION OR PENALTY DUE TO HIS OWN TESTIMONY. REMOVAL FROM OFFICE, HOWEVER, IS NOT A CRIMINAL PENALTY INVOLVING THE LOSS OF AN OTHERWISE PROTECTED RIGHT SUCH AS LIBERTY OR PROPERTY. IF AN EMPLOYEE WHO HAS BEEN GRANTED IMMUNITY TESTIFIES, RATHER THAN REMAINING SILENT, AND HIS TESTIMONY REFLECTS HIS UNFITNESS TO PERFORM HIS DUTIES, THE FIFTH AMENDMENT PRIVILEGE SHOULD NOT BE A BAR TO HIS DISMISSAL. AUTHOR ABSTRACT