Virginia Coalition of Police
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Favorable Garrity Analysis Adopted by Georgia

Aaron Nisenson, I.U.P.A. General Counsel

The Court of Appeals for Georgia issued a decision on September 1, 2006, adopting a favorable standard for determining whether Garrity immunity applies to statements given by law enforcement officers.  State v. Aiken, 2006 WL 2535046 (Ga. App.).  Generally, in order for a statement to be excluded from use in a criminal prosecution, the statement must be compelled by a threat of termination or other serious employment action.  A question arises if there is no explicit threat of termination.  Under the favorable “Friedrick analysis,” a statement would be protected if the officer subjectively believed that he would be terminated if he did not give a statement, and this fear was objectively reasonable.

In the Aiken case, the Georgia Court of Appeals came down firmly in favor applying the Friederick analysis.  In Aiken, a state probation officer sought to exclude a statement that he gave to an internal affairs investigator.  Aiken gave the statement after being required to sign a Notice of Interference with On-Going Internal Investigation, which threatened Aiken with discipline if he communicated with anyone about the interview.  However, Aiken was not given a Garrity statement which explicitly directed him to give a statement or be terminated.  The Court ruled that because the Defendant conceded he had not been explicitly threatened with termination,

 The question then is whether the statements were properly excluded applying the two-step analysis stemming from United States v. Friedrick, 842 F.2d 382 (D.C.Cir.1988). As we explained in Stinson,

In Friedrick, the D.C. Circuit held that statements should be excluded under Garrity, if (1) the defendant subjectively believes that he must answer questions or lose his job, and (2) this subjective belief is objectively reasonable. 

The Court then ruled that the trial court had properly excluded the officer’s statement finding that the officer had subjectively believed he would lose his job if he did not give a statement, and this fear was objectively reasonable and created by the department.  In a finding that may be helpful elsewhere, the Court stated that, “the circumstances surrounding the interview, including requiring Aiken to sign the Notice of Interference with On-Going Investigation immediately prior to the interview, constituted sufficient action by the Department to provide an objectively reasonable basis for Aiken's belief that his failure to cooperate could result in termination from employment.”  

This new case should help clarify an earlier decision by the Georgia Court that created confusion regarding Garrity protection.  In a previous case, State v. Stinson, 536 S.E.2d 293 (2000), the Georgia Court of Appeals had stated that there were two different standards: Friedrick, and Indorato, which the Stinson Court said required an explicit threat of termination for a statement to be protected under Garrity.  Unfortunately, the Court’s summary of Indorato was incorrect, as the Wisconsin Supreme Court explained in State v. Brockdorf, 717 N.W.2nd  657 (2006).  The Aiken case should help prevent any further incorrect interpretations of Indorato.


Aaron Nisenson

General Counsel, I.U.P.A.
Office: 800-247-4872
Cell: 202-441-5334
Fax: 941-487-2570