Hello. If I admit to using or selling drugs on a job application, is there a chance that I may be persecuted?
Yes! Persecuted, prosecuted, and beaten with a stick… lol, sorry. Why would you want to admit to a crime?
Not likely. If it involves obtaining a clearance however, and you don’t list it but it comes out in your BI, you will have some issues.
In the job application I need to specify criminal activities that I have done in the past.
This agency conducts a polygraph test so even if I was not arrested for the crime I feel as though I need to be honest and list the activities. However I’m curious if there’s a chance that I may be prosecuted for selling a little bit of the ganja in my early twenties.
I mean there’s the case of that one navy seal(I think) who admitted on his poly to murder on deployment. And the three letter gave that info to the military and he was prosecuted. Although I think the case was thrown out. Otherwise minor stuff I don’t think they have time nor care.
Yes, you should answer truthfully on the form and during the poly. I don’t know how old you are, but making bad decisions in early 20’s and being in your, say, 40’s now on the straight and narrow ever since then would seem mitigable.
Answer honestly. You have a right not to incriminate yourself and, if the agency requires you to list the information, it will not be usable against you.
Realize that you may not get the job offer because of your admission. But, it will turn out worse it your activity is discovered later.
My suggestion: read the form carefully, especially the initial page(s). That should answer your question. Unless I am mistaken, I do not believe that SF-86 does not explicitly say that the Government will not use the information from the form in criminal proceeding with exception of two or three sections for current Federal civilian employees.
So, if you are not a current Federal civilian employee and you are filing out SF-86, there is a chance that the information may be used against you. Will it? good question.
If the information on an SF-86 could be used in a criminal prosecution, I believe that it would violate the Fifth Amendment right against self-incrimination. If filled out accurately. If you lie on the form, that is a potential offense in itself.
I get what you are saying, but keep in mind… this is voluntary. Clearance Applicants/holders chose to go through this process. This is why the form stresses the “voluntary” nature. Obviously, applicants can assert their Fifth Amendment right by making it explicit; however, that probably will stop the process. Damned if you do, damned if you don’t.
By filling out that form and going through the process without asserting your Fifth Amendment right, you pretty much voluntarily “waive” your Fifth Amendment right. Whatever is written on the form or disclosed to a background investigation is fair game. The Government also isn’t going to mirandize clearance applicants/holders since this is an administrative proceeding. Miranda warning applies to criminal proceeding.
Can that be challenged? if the applicant has a deep pocket, sure. Although there are DOHA cases on the subject, but I have not come acrossed a Federal court case. That would be have been a landmark case.
Voluntary statements would not be allowed in court without Miranda. You can’t “pretty much” waive your rights. It requires an explicit act. Wasn’t there just a post mentioning a SEAL who admitted to murder during a reinvestigation? The case was thrown out?
When the feds are at the applicant’s door with an arrest warrant, they will mirandize the applicant at the time. When applicant meets with a background investigator, most, if not all, investigators say that… applicant can pretty much get up and leave at any time. Thus, it lacks elements of detainment and interrogation given that it is entirely voluntary.
Anyway, the information the applicant discloses… can and “will” be used in criminal proceeding. Applicant does have the right to cross eximination or to rebut whatever the Government presents. It is a tall order, especially when the form repeatedly and explicitly stresses the voluntary nature of it.
This is why I encourage folks to read the form thoroughly, especially the first few pages… which pretty much lay out the ground rules.
About the Navy Seal case, I think you may be referencing to Gallagher’s case. I don’t recall the details of the case, but can you tell me more about it? I dont remember reading something about the Navy violated his constitutional rights by prosecuting him for information was derived from the reinvestigation.
Gallagher was accused by his teammates or superiors, not during a reinvestigation. The case that I was talking about was buried, I believe, in a unrelated thread here making it incredibly difficult to go back and find.
In any case . . . The real answer lies in finding someone who WAS prosecuted for something that he/she admitted during an investigation.
Miranda only really applies when arrested in conjunction with the investigation of a crime. If you tell a cop voluntarily on the streets you killed someone, you can bet he’ll still be putting on bracelets.
It was a Green Beret:
He is still in the process of being charged.