As the “scandals” continue to mount around New Jersey Gov. Chris Christie, there are a lot of he said/she said allegations flying about. There has been more than one challenge issued by opposing parties for state employees to undergo polygraph tests to determine who is and who is not telling the truth. In addition to problems with the inherent reliability of the polygraph, the polygraph has had an interesting relationship with the Fifth Amendment in the government employer/employee relationship.  As has been stated in many courts throughout the country the protections of the Fifth Amendment and the prohibition against the use of compelled statements apply to all government employees; police officers, city clerks or memebers of the body politic.

In 1967, the U.S. Supreme Court in Garrity v. New Jersey reinforced the fundamental constitutional principle that coerced statements given in violation of the Fifth Amendment are inadmissible in criminal proceedings.

In Garrity, police officers in New Jersey were questioned during the course of a state investigation concerning alleged traffic ticket “fixing.” Each officer was first warned that: anything he said might be used against him in a state criminal proceeding; he could refuse to answer if the disclosure would tend to incriminate him; if he refused to answer, he would be subject to removal from office. The officers’ answers to the questions were used over their objections in subsequent prosecutions, which resulted in their convictions.”

The U.S. Supreme Court found that statements made by law enforcement officers and other government employees given under threat of loss of employment, are coerced and cannot be used in a criminal proceeding.   The Court held that the “threat of removal from public office … to induce the petitioners to forgo the privilege against self-incrimination…rendered the resulting statements involuntary, and therefore inadmissible in the state criminal proceedings.”  Basically, the reasoning was that choice between being discharged for invoking the Fifth and refusing to answer the investigators questions and potential self incrimination rendered the statements products of coercion.

The Garrity rule was adopted by the Texas Court of Criminal Appeals in 1981 in Ex parte Jeff Morehouse.   A 1986 decision by the Texas Third District Court of Appeals in Firemen’s and Policemen’s Civil Service Commission v. Burnham dealt with a member of the Austin police department who had a rape complaint filed against him in 1983. The police chief ordered the officer to take a polygraph examination, and when he refused, the chief fired him. The trial court threw out the dismissal, finding that the rape allegation was not related to the officer’s employment. The appeals court overruled the trial court, finding:

“[An individual], of course, [is] protected from unwarranted intrusions into his private affairs. Nevertheless, the government as an employer has authority to question its employee concerning matters relevant to his employment. The government may dismiss or discipline an employee, after proper proceedings, if he refuses to account for the performance of his employment duties. If he is not coerced into waiving a constitutional right, there is no constitutional impediment to such dismissal or discipline. Incriminating information obtained from a compelled examination is inadmissible, of course, in a subsequent criminal prosecution.”

The Burnham court qualified its opinion by noting that a government employer does not have the authority to compel a polygraph examination concerning employment-related issues. However, in criminal allegations not related to employment, the court turned to an Illinois federal district court decision which held that a police officer could be dismissed for refusing to answer questions about a rape allegation. In addressing the issue of whether the rape complaint was related to the officer’s official duties, the federal court found that an Illinois law required a police officer to report criminal conduct when off duty. Texas has similar laws. The Burnham court concluded:   “Because a police officer has an obligation to prevent crime even when off duty, the district court erred in concluding that the alleged rape was not related to Burnham’s employment with the Austin Police Department and that the subject of the polygraph examination was not specifically, directly, and narrowly related to the performance of Burnham’s official duties as an Austin police officer. The polygraph examination, because it related to Burnham’s official duties, did not violate any of his constitutional rights, and the department was, therefore, within its authority in dismissing Burnham for refusing to obey a direct order to submit himself to the examination.”

Garrity dealt with coercion in the inquisition stage of a criminal investigation where use of a polygraph could lead to a suspect giving incriminating statements. While the Court of Criminal Appeals refused writs in the Burnham case, it has never directly addressed the Garrity issue as it was presented in Burnham concerning compelled polygraph exams, nor has it ever addressed the self-incrimination issue associated with such exams.

But the U.S. Supreme Court in 1990  in Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990) relied upon Garrity to find that any compelled testimony violates right against self-incrimination:

“We are not called upon to define the precise limitations that may exist upon the State’s ability to use the testimonial aspects of Bouknight’s act of production in subsequent criminal proceedings. But we note that imposition of such limitations is not foreclosed. The same custodial role that limited the ability to resist the production order may give rise to corresponding limitations upon the direct and indirect use of that testimony. The State’s regulatory requirement in the usual case may neither compel incriminating testimony nor aid a criminal prosecution, but the Fifth Amendment protections are not thereby necessarily unavailable to the person who complies with the regulatory requirement after invoking the privilege and subsequently faces prosecution. [The attractive and apparently practical course of subsequent use restriction is not appropriate where a significant element of the regulatory requirement is to aid law enforcement]. In a broad range of contexts, the Fifth Amendment limits prosecutors’ ability to use testimony that has been compelled …”

Citing its decision in Garrity, the Court held that a defendant does not need a statute to protect him from self-incrimination. The Fifth Amendment takes care of that.

It is our opinion that forcing a law enforcement officer, or anyone else, to take a polygraph test under the threat of employment termination is compelled testimony, regardless of the fact situation.