Individual Rights During Examinations Flashcards
False imprisonment
False imprisonment is the restraint by one person of the physical liberty of another without consent or legal justification.
To recover for a claim of false imprisonment, the plaintiff must prove all of the following elements:
• The defendant used words or actions intended to restrain the plaintiff.
• The defendant’s words or actions resulted in the restraint of the plaintiff without the plaintiff’s consent (i.e., against the plaintiff’s will) and without legal justification.
• The plaintiff was aware that he was being restrained.
A claim of false imprisonment might arise if an employee is detained in any way during a search or interview. Generally, an employer is entitled to question an employee at work about a violation of company policy without incurring liability as long as the employee submits to the questioning voluntarily; that is, not as a result of threats or force.
What are the exceptions for the Fourth Amendment requirement that a police officer must obtain a search warrant before conducting a search.
There are a number of recognized exceptions to the warrant requirement, principally:
• Workplace searches by government employers
• Searches performed as an incident to arrest
• Searches of motor vehicles
• Searches in exigent or emergency circumstances, to prevent the destruction of evidence, or while in “hot pursuit” of a suspect
• Searches conducted pursuant to valid, voluntary consent
• Searches when the evidence is in “plain view”
• Border, customs, and prison searches
The Fourth Amendment is
In short, the Fourth Amendment prohibits unreasonable searches and seizures, but it only applies to actions by the police or other governmental authorities. There must be some form of “state action” involved for an individual to recover for violations of constitutional rights. State action is involved during any investigation by a state or federal entity, including investigations of its own employees. But in some situations, state action can involve private individuals and companies.
Thus, the Fourth Amendment prohibits government employers from unreasonably invading their employees’ privacy to conduct a workplace search, and it prohibits government employers from conducting unreasonable surveillance of employees (e.g., video surveillance or wiretapping) where they would reasonably expect privacy.
The Fourth Amendment covers illegal searches and seizures, and because every person has a reasonable expectation of privacy in their residences,
The Fourth Amendment to the U.S. Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures and permits reasonable searches. The general rule is that a reasonable search is one that is carried out pursuant to a valid search warrant (i.e., a court order that grants authorities the right to search a person or place for evidence of a crime). Thus, in some circumstances, the Fourth Amendment requires that the government obtain a warrant before it conducts a search.
Can private employers conduct corporate investigations? What are the constitutional rights of an employer?
The United States Constitution protects individuals from abuse of governmental power, and several constitutional provisions can come into play in the course of a fraud investigation.
However, although the U.S. Constitution protects individuals, the general rule is that it only protects individuals from certain action by the government. That is, the Constitution limits government action; it does not limit the powers of private parties. Thus, as a general rule, the Constitution restricts the activities of government agents and employers, but it does not limit the power of private employers in conducting a corporate investigation. These restrictions apply to all levels of government: local, state, and federal.
For an employee to bring a successful suit against an employer for violating one of his constitutional rights, there must be some form of “state action” involved. State action is involved during any investigation by a state or federal entity, including investigations of its own employees. Because private individuals and companies can engage in state action, private companies can be held liable for violating an employee’s constitutional rights in such circumstances.
The Fourth Amendment protections only apply to actions by the police or other governmental authorities; searches and seizures conducted by private parties are not regulated, unless they are substantially directed by public officers.
There are no bright-line rules regarding when an investigation can be considered to involve state action.
The following examples, however, could be considered to involve state action:
• Investigations conducted by a private company but at the suggestion or request of the state or federal authorities
• Investigations begun by a private company that later are taken over or expanded by state or federal authorities
• Joint investigations with or aided by state or federal authorities
• Investigations conducted by a private company that are required by state or federal law
• Searches or interrogations conducted by outside investigators who are off-duty state, local, or federal authorities
Invasion of privacy laws
Invasion of privacy laws concern a person’s right to keep his life private and free from intrusion. There are two relevant torts of invasion of privacy:
(1) intrusion upon seclusion and
Intrusion upon seclusion occurs when an individual intentionally intrudes into an area where another individual has a reasonable expectation of privacy and the intrusion would be highly offensive or objectionable to a reasonable person
The elements of this tort include:
• An intentional intrusion
• Into an area where an individual has a reasonable expectation of privacy
• The intrusion would be highly offensive or objectionable to a reasonable person
(2) public disclosure of private facts.
The tort of public disclosure of private facts occurs when one party makes public statements about another party’s private life that are not of public concern.
Unlike defamation claims, the public disclosure of private facts cause of action can arise even if the statements at issue are true. The key to this cause of action is that the information must be private in nature and not a matter of public interest.
Defamation
Defamation is an unprivileged publication of a falsehood about a person that tends to harm that person’s reputation. The law of defamation actually consists of two torts: libel and slander. Libel is basically defamation that appears in written form, while slander involves defamatory remarks that are only spoken.
To recover for defamation, the plaintiff must prove the following elements:
• The defendant made an untrue statement of fact.
• The statement was communicated (published) to third parties.
• The statement was made on an unprivileged occasion.
• The statement damaged the subject’s reputation.
Able, a fraud examiner, interviewed Beta, a fraud suspect. No other people were present at the interview. During the interview, Able accused Beta of committing fraud. This accusation later turned out to be erroneous, and Beta sued Able for damages. Under these facts, which of the following statements is CORRECT?
A. If Beta sued Able for defamation, Beta would recover damages because Able made an untrue statement of fact on an unprivileged occasion.
B. If Beta sued Able for slander, Beta would not recover damages because Able did not publish the accusation to a third party.
C. If Beta sued Able for defamation, Beta would recover damages because Able made public statements about Beta’s private life on an unprivileged occasion.
D. If Beta sued Able for libel, Beta would not recover damages because Able believed the accusation to be true
B
Even though Able made an untrue statement, it was not broadcast to a third party or parties. As a result, the statement does not meet the test of defamation. So, Able did not commit slander, and Beta would not recover any damages.
Also, Beta cannot recover damages for libel because Able’s accusation was not in written form; it does not matter whether Able believed the accusation to be true.
False imprisonment
False imprisonment is the restraint by one person of the physical liberty of another without consent or legal justification.
To recover for a claim of false imprisonment, the plaintiff must prove all of the following elements:
• The defendant used words or actions intended to restrain the plaintiff.
• The defendant’s words or actions resulted in the restraint of the plaintiff without the plaintiff’s consent (i.e., against the plaintiff’s will) and without legal justification.
• The plaintiff was aware that he was being restrained.
A claim of false imprisonment might arise if an employee is detained in any way during a search or interview. Generally, an employer is entitled to question an employee at work about a violation of company policy without incurring liability as long as the employee submits to the questioning voluntarily; that is, not as a result of threats or force.
Miranda Warning
Designed to protect an individual’s Fifth Amendment right against self-incrimination and Sixth Amendment right to an attorney, Miranda warnings advise suspects that they have the right not to answer questions and the right to legal counsel during interrogations. Miranda warnings are required only if a person is being interrogated by public authorities in a custodial setting. Custodial setting refers to questioning initiated by government agents after a person has been taken into custody, or otherwise deprived of his freedom or action in any significant way. As a result, both private and public employers may interview employees in noncustodial settings without giving Miranda warnings.
In the context of employee interviews by public employers, the answer to whether Miranda warnings are legally required depends on the applicability of the Fifth Amendment to the employee interviews. When a public employee is being questioned by his employer, he is being questioned by the government; therefore, the Fifth Amendment applies to employee interviews that are related to potentially criminal conduct.
And because the Fifth Amendment’s protection against self-incrimination applies to internal investigations conducted by government employers, public employers must give Miranda warnings to employees being subjected to custodial interviews (i.e., employees in custody and subject to interrogation). That is, public employers must give Miranda warnings to employees being interviewed about a potentially criminal matter if the government (or its agent) has arrested the employee or deprived him of action in a significant way.
Constitutional protections that apply to public employees
Constitutional protections generally only apply to public employees. This means that employees of federal, state, and local governments must be afforded protection under the Fifth Amendment.
Under the Fifth Amendment, a public employer cannot fire employees for refusing to answer questions that might incriminate them. The leading case on this issue is Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, several New Jersey police officers were threatened with dismissal from their jobs if they refused to answer questions relating to a conspiracy to obstruct traffic laws. The officers, faced with termination, answered the questions and were subsequently prosecuted. The U.S. Supreme Court found that the statements had been improperly coerced and thus they were not admissible at trial.
The Fifth Amendment only protects persons against compelled testimony. Thus, if an employee voluntarily confesses to a crime, he can be fired without violating his constitutional rights. The confession, however, must be truly voluntary; the employee cannot be coerced in any way to give self-incriminating evidence during an interview.
Spoliation
Spoliation of evidence is broadly defined as the act of destroying evidence or making it otherwise unavailable. The act of spoliation can surface in just about any type of case, criminal or civil, and by any party, plaintiff, or defendant. The theory behind spoliation of evidence presumes that the individual who makes evidence unavailable following the probable initiation of a lawsuit is aware of its detrimental effect upon a case.
Although few jurisdictions have a separate cause of action for spoliation of evidence, almost every jurisdiction allows for sanctions resulting from such acts. To impose sanctions for spoliation, some courts require the spoliation to be intentional, though others merely require negligence or reckless spoliation. Thus, spoliation sanctions can arise from intentional acts and negligent acts.
Probable cause in search and seizure cases
Probable cause has been defined as those facts and circumstances sufficient to cause a person of reasonable caution to believe that a crime has been committed and that the accused committed it. Probable cause requires more than mere suspicion or hunch, but less than virtual certainty. “Reasonable grounds to believe” is probably as good a definition as any.
Consent searches based on Fourth Amendment.
Consent is a recognized exception to the warrant requirement. Individuals are always free to waive their Fourth Amendment rights. If a subject consents to a search or seizure by a government agent, this eliminates the need for a warrant. Thus, the government does not need a warrant to perform a search if a person with proper authority consents to a search.
But to constitute an effective waiver of Fourth Amendment rights, an individual’s consent to a search or seizure must be voluntary.
Consents to searches by government agents obtained by deceit, bribery, or misrepresentations are generally held to be involuntary and, therefore, do not waive the consenting parties’ Fourth Amendment rights.
Also, government agents do not have to warn subjects that they have a right to refuse to consent to searches.
