The Fifth Amendment Disclosure Obligations of Government Employers when Interrogating Public Employees

Under established Fifth Amendment principles, if a government employer interrogates an employee on penalty of discipline or job loss, none of the statements obtained during that interrogation may be used against the employee in subsequent proceedings, and the government employer cannot constitutionally discipline or fire the employee for failure to waive this right to immunity. Courts are divided, however, on the issue of whether a government employer has a duty to give public employees notice of these rights and immunities prior to interrogation. One group of circuits adopts the "no affirmative tender" approach, which rejects a notice requirement and automatically attaches immunity when public employees are compelled to waive their right to immunity and answer potentially incriminating questions on penalty of disciplinary action or job loss. A second group of circuits adopts the "duty to advise" approach, which requires government employers to give employees notice of their rights and immunities under the Fifth Amendment, as well as the consequences to any decisions they may make. This article argues that courts should adopt the "duty to advise" approach, for four reasons. First, this approach eliminates the potential for public employees to attempt to exercise their constitutional privilege against self-incrimination and unknowingly subject themselves to discipline. Second, it eliminates the potential that the government will use its position of power to manipulate or exploit public employees. Third, the duty imposed on the government in comparison to the protection afforded to the employees would be inherently low. Fourth, it facilitates the government in the process of fact-finding by giving the employees an incentive for honesty.