Investigators want to ask you some questions about allegations that could be criminal in nature, say an allegation of theft on duty. You’re concerned because you don’t know whether your statement can be used against you criminally if you answer the questions. No, not if you’re compelled to answer.
I’m Muna Busailah, a police defense attorney for over 25 years in the law firm Stone Busailah. We’ve advised and represented officers in circumstances just like the one I described. Let me explain.
The Fifth Amendment
The Fifth Amendment guarantees you the right to not be forced to testify against yourself. Known as right to remain silent, the Fifth Amendment provides that you cannot be forced or compelled to testify or give evidence against yourself. When you take the fifth, you’re invoking that right and refusing to answer questions.
How it applies to officers
And how does this Fifth Amendment apply to officers? Just like any other citizen, an officer has the right to invoke the fifth, meaning he’s not forced to testify or provide evidence against himself. However in an administrative investigation, the law allows your department to order or compel you to answer questions despite the fact that you invoked your right to silence.
If you’re forced to testify
If you’re summoned in for an interview, you should first ask whether refusal to answer the questions could result in discipline. If the answer is yes, invoke your right against self-incrimination and after you’re ordered to answer the questions, clarify that you’re only cooperating because you fear being disciplined for refusing to answer. A legal principle called use immunity is what protects your answer from being used against you criminally.
If you refuse to waive your right against self-incrimination and invoke that right, use immunity attaches and whatever you say in the interview cannot be used against you criminally. Note while your statements are protected from being used against you criminally, they can and will be used against you administratively.
If your answers are not compelled
Another thing to consider is that if the investigator is not your employer or his agent, he cannot order you to talk, so your answers are not compelled. Instead, if you give testimony or give statements, the statements are voluntary and can be used against you for all purposes, including criminally.
What you should do
So if your statement is not from your agency or a person who has authority to order you to cooperate, do not talk, at least not until you obtain competent legal advice and determine what position to take. Remember, without an order to talk, your statement has no protection at all.
If you’d like to learn more about how to protect yourself in an administrative investigation, click the link and get a free copy of “Ten things to remember during an internal investigation.”