I was watching a Law and Order SVU episode which involves two court proceedings.

The first is an article 32 hearing which is introduced in the episode as the military equivalent of grand jury. According to a transcript online, they say:

An article 32 hearing. It's the military's version of a grand jury except there are no boundaries. They can ask her anything they want.

An officer testifying in this article 32 hearing is later the subject of a criminal proceeding. At some point, the criminal prosecutor is presented with a file on the military hearing but he refuses to look at it saying, again from the transcript:

I might have something that can help. [Military officer] Taverts' testimony at a military hearing... Stop! No, stop talking. Okay, you all right, counselor? You almost tripped over the garrity rule. Everything in this file is dirty. An officer can't invoke at a military hearing, so the courts consider this testimony to be compelled, to be coerced. So these statements cannot be used in a criminal prosecution. If I even so much as look at this file, I have to recuse myself from the case. Mistrial. Game over.

Is it true that a military officer's testimony in military court may not be used as evidence in a criminal proceeding because the criminal court considers the testimony to be coerced?

I'm wondering specifically if this is true as a blanket statement (i.e. no such testimony is allowed) or if it's only disallowed in certain specific cases where the military court allowed some testimony that violates the rules of evidence in criminal court.

  • If there are questions that could be asked in a non-military court, the prosecutor could just ask them again. If there are questions that the prosecutor wouldn’t be allowed to ask, then it seems reasonable not to rely on an answer given under different court rules.
    – gnasher729
    Sep 1, 2022 at 16:21
  • @gnasher729 the implication here seems more serious. I expanded the quote a little bit. The prosecutor in the series argues that his seeing the file would be enough for a mistrial. In my understanding of the story in the series, the reason for this is that the prosecutor would have been given access to information he could not otherwise obtain and the officer was not given the chance to exercise his 5th amendment rights which he would have been able to invoke in a police interrogation. The Garrity rule seems relevant, but I don't know if/how it extends to the particulars of a military hearing.
    – JJJ
    Sep 1, 2022 at 16:32

1 Answer 1


Garrity Rule

There is a "Garrity Rule". It is derived from Garrity v. New Jersey, 385 U.S. 493 (1967). In that case the US Supreme Court held that military and law-enforcement officers and other public employees are not required to sacrifice their right against self-incrimination in order to avoid dismissal.

Several police officers were accused of "ticket fixing" . They were interviewed, and although they were told they had a right not to incriminate themselves, were threatened with dismissal if they did not "cooperate".

The U.S. Supreme Court ruled that the employees’ statements, made under threat of termination, were compelled by the state in violation of the Fifth and Fourteenth Amendments. The decision asserted that:

... the option to lose their means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak or to remain silent.

The statements were held not to be admissible.

The US Supreme Court opinion can be found here.

Effect of the Rule

I find several sources (some listed below) indicating that public employees, including military personnel, may not be compelled, under threat of dismissal or serious discipline, to waive or refrain from invoking, their rights against self-incrimination.

If such employees are subject to such threats, any statements are considered compelled, and are not admissible against the makers of the statements, much as if a Miranda warning had not been given to a person questioned while under arrest. This does not make the statements inadmissible against a different defendant.

The procedures in courts-martial now require "Garrity Warnings", and do not attempt to force officers or enlisted persons to testify to self-recriminating facts.

I did not find any source suggesting that merely because testimony had been given in a court-martial, it is inadmissible. Nor did I find any source stating that merely being aware of inadmissible testimony renders a prosecutor or judge unable to continue. Judges hear inadmissible testimony every time there is a suppression hearing in which the evidence is in fact suppressed, and that is very frequent. It is only juries who must not hear such testimony.

Io invoke the rule, there would need to be evidence that a witness had been ordered not to invoke the 5th, or threatened with dismissal or other serious consequence if s/he did so, and would have invoked it in the absence of such orders or threats. In the original Garrity case, the defendants objected at the trial and at other appropriate times. It was those objections which triggered the ruling.


In short it seems to me that the writers of the show significantly overstated the breadth and effect of the rule, perhaps for dramatic purposes.


In the October 2018 issue of "The Adcisor" a publication of the US Navy's Judge Advocate General's office, it is stated thst the following warning must be given to any civilian employees who are being interviewed as part of a military investigation of a crime:

Garrity Warnings
You are being asked to provide information as part of an internal and/or administrative investigation. This is a voluntary interview and you do not have to answer questions if your answers would tend to implicate you in a crime. No disciplinary action will be taken against you solely for refusing to answer questions. However, the evidentiary value of your silence may be considered in administrative proceedings as part of the facts surrounding your case. Any statement you do choose to provide may be used as evidence in criminal and/or administrative proceedings.

in Garrity Rights for Law-Enforcement Officers by By Aaron Nisenson it is stated that:

The basic premise of the Garrity protection is straightforward: First, an Officer cannot be compelled, by the threat of serious discipline, to make statements that may be used in a subsequent criminal proceeding; second, an Officer cannot be terminated for refusing to waive his Fifth Amendment right to remain silent. Gardner v. Broderick, 392 U.S. 273 (1968).

Therefore, if an Officer gives a coerced statement, the statement is "protected,” and cannot be used in a subsequent criminal prosecution.

However, the practical application of Garrity has been complicated and uncertain. The Courts have been all over the map in their application of Garrity: with some Courts applying Garrity to protect Officers’ Constitutional rights, and other Courts seeming to try to evade Garrity. Thus, in the Garrity area, Officers are best served by following the old adage: prepare for the worst, and hope for the best.

The initial issue in the application of Garrity is the Department’s actions in extracting a statement from an Officer. In order for Garrity protection to apply, the government must have “coerced” a statement from an Officer. Generally, this coercion consists of an order, under threat of termination, to give a statement on a work related matter

The US Rules for Courts-Martal states in Rule 405. Preliminary hearing section (f) (2) (D) (on page 36) that an accused has the right to:

Be informed of the right against self-incrimination under Article 31.

  • 1
    It is worth noting that the courts declined to follow the Garrity precedent to its logical conclusion. In civil litigation you do have to choose between self-incrimination and exposing yourself to a great risk of an adverse inference in that litigation that is very likely to make you lose the lawsuit. Garrity is a high water mark of 5th Amendment protections, and if the case had arisen as a question of first impression today would probably not have been decided in the same way.
    – ohwilleke
    Sep 2, 2022 at 19:30

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