Tuesday, January 25, 2011
Peter K. Westen (University of Michigan Law School) has posted Answer Self-Incriminating Questions or Be Fired (American Journal of Criminal Law, Vol. 37, No. 2, p. 97, Spring 2010) on SSRN. Here is the abstract:
Can a public employee be fired for refusing to answer self-incriminating questions or be prosecuted based on answers he gives under threat of firing?
These are questions that underlie a 2009 U.S. District Court decision dismissing prosecutions against the Blackwater employees for killing Iraqi civilians in Baghdad in September, 2007. They are also questions that the U.S. Supreme appeared to answer in a series of five cases from 1967-77. Yet the lower federal remain sharply divided about what those five decisions mean and, specifically, about whether the government must inform public employees that they possess immunity should they respond to a threat of discharge by answering self-incriminating questions.
I argue that the latter issue is fractious because it manifests doctrinal instability in the Supreme Court’s Fifth Amendment jurisprudence. The doctrinal instability stems from Garrity v. New Jersey, the only case in which a public employee responded to the threat of discharge by making self-incriminating statements rather than remaining silent. I believe that Garrity was wrongly decided at the time because it overlooked the legal significance of facts that distinguished it from the other cases. However, even if Garrity was correctly decided in 1967, it has been superseded by subsequent Supreme Court decisions. The subsequent decisions stand for the proposition that, with a few exceptions which are inapplicable in public employee cases, a person who is wrongly pressured to incriminate himself forfeits the protections of the privilege if he responds by making incriminating statements rather than remaining silent.
Once Garrity is seen to have lost vitality, the issue that divides the lower federal courts becomes moot. Public employees need not be advised that they possess Garrity immunity in the event they incriminate themselves because no such immunity exists. To be sure, the government is prohibited from firing employees merely for invoking the privilege. However, the government can do so if it first grants them formal immunity. And even it does not grant them formal immunity, it can fire them based upon inferences of guilt that arise from their refusing on Fifth Amendment grounds to answer specific, job-related questions.