Can My Statements to Investigators Be Used Against Me?

MICHAEL P. STONE
Founding Partner
Stone Busailah, LLP

Investigators want to ask you some questions about allegations that could be criminal in nature, say an allegation of theft on duty. You wonder if your statement can be used against you criminally if you answer the questions. The answer is — no, they cannot be used against you if you are compelled to answer the questions.

 The Fifth Amendment

The Fifth Amendment guarantees you the right to not be forced to testify against yourself. Known as the 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 the officer cannot be 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 the Fifth and proclaimed your right to remain silent.

 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.

When you object to answering on Fifth Amendment grounds, they will normally tell you (1) you are ordered to answer (failure to do so is insubordination); (2) anything you say in answer cannot be used against you in a criminal proceeding. After this occurs, you have use immunity for any statements you make at that time.

Note, however, that 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. 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 make statements, the statements are voluntary and can be used against you for all purposes, including criminally.

 What You Should Do

If your statement is not being sought by 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.

 Top 10 Rules to Always Keep in Mind

While the following rules were printed in this magazine back in 2016 in greater detail, they are worth repeating as a reminder here. Anytime you do decide to make a statement, please keep in mind:

•  Rule No. 1: Speak only the truth. A member with a poor character for truth, honesty and veracity is unfit. He or she cannot be rehabilitated once records reflect a specific instance of dishonesty or deception in an official matter.
•  Rule No. 2: Do not try to predict the course of the interrogation or the scope of the investigation.
•  Rule No. 3: Record all investigative interrogations with a plainly visible recorder.
•  Rule No. 4: Make sure you understand what the focus and scope of the investigation are, whether you are suspected of any misconduct and whether whatever you are going to say in response to questioning will disclose misconduct. Discuss all of this thoroughly with your representative beforehand.
•  Rule No. 5: Demand all notes, reports, statements and complaints made by any person. If the investigators insist on withholding anything, have them describe what is being withheld with sufficient particularity that it may be identified at a later time. Also, demand on the record that all investigators’ notes be retained until final disposition of the case.
•  Rule No. 6: Remember that you cannot disclose criminal misconduct to a representative who is also an employee and expect that it will remain confidential between you. He or she is arguably under a duty to report such things. Do not complete any reports or statements or answer any questions without being ordered or compelled to do so.
•  Rule No. 7: If investigators desire to remove you from your home to conduct an interview or take a statement, demand to talk to a representative before you are required to leave and demand to know the basis for such an exigency.
•  Rule No. 8: Obey all orders that are even only arguably legal — do not invite a charge of insubordination if it can be avoided in any reasonable way. Investigators have the right, in investigations that are specifically, narrowly and directly related to an official interest, to give you an order to answer questions.
•  Rule No. 9: As stated above, if your answers to questions may tend to incriminate you, assert your Fifth Amendment right and get a lawyer immediately. The same holds true for written reports and memos that may be used against you in a criminal prosecution. In any case where you are under threat or apprehension of criminal investigation or prosecution, and you are told to write an account of your relevant activities, you need to invoke your right against self-incrimination and secure an order under pain of insubordination to complete the required document. Make it clear that your completion of the required report or memo was preceded by your assertion of the right to silence but that the invocation of your rights was overridden by a direct order.
•  Rule No. 10: In proper circumstances, invoke your right to silence if you are directed to complete any written accounts of your actions. Secure a direct order to complete the report or memo and then document the facts in a separate memo to your supervisor. Get legal advice if you can, but remember that you must ask for the opportunity to speak to a lawyer before you write any statement or report or answer any questions.

 About the Author

Michael P. Stone is the founding partner and principal shareholder of Stone Busailah, LLP. He has practiced exclusively in police law and litigation for 37 years, following 13 years as a police officer, supervisor and police attorney. He is an A-V Preeminent-rated trial lawyer by the National Martindale-Hubbell Law Directory, which is the highest lawyer rating attainable in the directory, reflecting the confidential opinions of lawyers and judges.