BYU Law Review


The U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by immunizing the employee’s statements from being used in any future criminal prosecution. Given that service member misconduct and on-the-job mishaps can have grave consequences in the military, Garrity has the potential to serve as a critical tool for the military commander.

This Article contends that despite the military’s separate and unique justice system and the increased protections against self-incrimination afforded to service members, as a matter of law, nothing prohibits the application of Garrity immunity to the military. Thus, this Article argues that, in certain circumstances and with appropriate safeguards, allowing military commanders to compel service members to answer questions that are directly related to their official duties under threat of administrative separation could promote the commander’s goal of achieving justice, good order and discipline, and the mission-readiness of his or her unit.


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