Georgia Supreme Court Establishes Garrity Standard for Georgia

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

On June 4, 2007, the Georgia Supreme Court issued a decision establishing a “totality of the circumstances” test for whether a statement was compelled under Garrity.  State v. Aiken, 2007 WL 1582635.  While the Court did not adopt the Friedrick standard used by the Georgia Court of Appeals and other Courts, the “totality of the circumstances” test is similar if not more favorable for officers.  For example, the Court made clear that an express threat of termination is not necessary in order for a statement to be compelled.  The Court also adopted one factor that is very favorable for officers: whether the officer “was aware of any statutes, ordinances, manuals, or policies that required cooperation and provided generally, without specifying a penalty, that an employee could be subject to discipline for failing to cooperate.”

The entire rationale of the Court was contained in one paragraph:

Having examined the foregoing authority, we conclude that it is unnecessary to adopt the two-part test of Friedrick or the more narrow interpretation of Garrity espoused by other courts. Instead, because the Supreme Court in Garrity employed the totality-of-the-circumstances test for evaluating whether the defendant's statement was coerced, and because this State's courts have vast experience applying this test, we hereby adopt that test for determining whether the statements that a public employee makes during an investigation into his activities is voluntary. Factors that a court may consider include those discussed in the foregoing cases, including whether the State actor made an overt threat to the defendant of the loss of his job if he did not speak with investigators or whether a statute, rule, or ordinance of which the defendant was aware provided that the defendant would lose his job for failing to answer questions.  If no express threat is present, the court may examine whether the defendant subjectively believed that he could lose his job for failing to cooperate and whether, if so, that belief was reasonable given the State action involved. In determining whether the defendant's belief was objectively reasonable, the court may examine whether the defendant was aware of any statutes, ordinances, manuals, or policies that required cooperation and provided generally, without specifying a penalty, that an employee could be subject to discipline for failing to cooperate. The court may also consider whether the investigator implicitly communicated any threat of dismissal either in written or oral form; whether, before the interrogation began, the defendant was told he was free to leave at any time; and whether the defendant was told he had the right to have a lawyer present.  A trial court, of course, is free to consider any other factor that it determines is relevant to the determination of voluntariness. We conclude that the totality of the circumstances test is in keeping with the spirit of Garrity and with the discretion our courts have historically enjoyed in determining whether a defendant's statement is voluntary.

 

While this decision is only binding in Georgia, the concepts advanced by the Court constitute a step forward for the rights of all law enforcement officers.