Investigations - Lybarger Warning

Background

University Employees have a duty to participate and cooperate in University investigations and to answer questions from University officials and duly appointed investigators. In some circumstances employees may feel that if they answer some questions they may incriminate themselves and that the information that they provide might be used against them in a court of law in future criminal proceedings. If this occurs and the employee “takes the fifth” the official or investigator must inform the employee of the protections offered to them. This instruction is called the “Lybarger Warning” because it is named after a court case from an individual by that name.

Situations Where the Lybarger Warning must be given

Witnesses in a University investigation should be provided the "Lybarger instruction" (described below) in the following circumstances and according to the following parameters:

  • The University needs to interview a University employee concerning issues that are, or may be, the subject of criminal sanctions against the witness. The University employee is subject to discipline if (s)he fails to cooperate in the investigation.

  • If a witness has information that may incriminate themselves in a future criminal proceeding, the witness may refuse to participate in the University investigation, and the University may not discipline for such refusal, unless and until the witness is provided assurances that the use of the compelled testimony and evidence derived from such testimony will not be used in any subsequent criminal case in which (s)he is a defendant (i.e. immunity).

  • If a witness nevertheless is compelled to testify in the University proceeding without such protections from self incrimination, the testimony is inadmissible against him/her in a later criminal prosecution.

  • If immunity from use of the evidence in a later criminal proceeding is provided the employee, the employee may be disciplined if (s)he still fails to cooperate in the University investigation.

In such circumstances the University employee should be provided, in writing if possible, with the following instruction:

"You have been asked to provide information as part of a University investigation. Failure to fully cooperate in a University investigation may subject you to disciplinary action. Please be advised that in order to protect your Fifth Amendment right against self incrimination in a criminal proceeding, any information you provide as part of this investigation cannot be used against you in any subsequent criminal proceeding. "