U.S. Supreme Court: Silence Admissible

22 July 2013 Publication
Author(s): Pamela L. Johnston Lisa M. Noller

Legal News Alert: Government Enforcement, Compliance & White Collar Defense

When faced with questions from a government investigator, a person’s silence can now be used in a criminal trial against the person who was questioned and declined to provide an answer. This is a major change regarding how the Fifth Amendment’s right against self-incrimination is applied. This change stems from a recent U.S. Supreme Court decision, Salinas v. Texas, 133 S. Ct. 2174, 2013 U.S. LEXIS 4697 (June 17, 2013), that upheld a murder conviction. In Salinas v. Texas, the Supreme Court specifically held that witnesses must affirmatively invoke their Fifth Amendment right (rather than simply remaining silent) when they are participating in a non-custodial interview with law enforcement. The decision is expected to have significant implications for corporations and corporate executives facing government inquiries and investigations.

The defendant in Salinas submitted to a police interview and answered a number of seemingly innocuous questions during the course of an almost one-hour interview. Near the end of the interview, police asked the not-yet-defendant if his shotgun would match the shells recovered at the scene of the murder. The defendant did not answer this question, but looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, and began to tighten up. After this question, he was asked additional questions, which he also answered. Essentially, he answered all but one question, to which he remained silent.

At trial, over objections, the prosecutor was permitted to comment in closing argument on the defendant’s silence and was specifically permitted to argue that the defendant’s “selective transitory silence” demonstrated his guilt because an innocent person would have responded to the question. The jury convicted defendant, and the Court sentenced the defendant to 20 years in prison.

The Supreme Court upheld the conviction, noting the general rule that the privilege against self-incrimination must be expressly invoked. The Supreme Court found that the two recognized exceptions to this general rule did not apply in the Salinas case. The first exception, enunciated in Griffin v. California, 380 U.S. 609 (1996), is that a criminal defendant need not take the stand to assert his privilege against self-incrimination at this own trial. The second exception, found in Miranda v. Arizona, 384 U.S. 436 (1996), is that a witness’s failure to invoke the privilege will not constitute waiver of the privilege when the defendant is in an involuntary custodial interrogation.

The Salinas Court failed to extend Miranda and the protections afforded in a custodial interrogation setting to the non-custodial setting in this case, and emphasized the voluntary nature of the Salinas interview with law enforcement. The Court reasoned that the defendant in Salinas, unlike in Miranda, was not facing coercion and, therefore, the same protections need not be afforded.

So, what does a murder conviction have to do with your company?

Companies — and their officers, executives, directors and employees — may often find themselves being asked questions in non-custodial settings. This is particularly true in heavily regulated industries such as health care, where federal regulators and government auditors often make inquiries without taking someone into custody. Companies also often respond to government requests for documents or other information and, in doing so, refrain from making certain statements. Law enforcement officers also may appear unannounced to execute a search warrant and interview individuals present. Lastly, law enforcement officers may call a company’s employees to gather information as part of an ongoing investigation. Each of these contacts arguably falls under the non-custodial questioning fact pattern of Salinas and thus, if the privilege against self-incrimination is not expressly invoked, it may be lost.

Now more than ever, companies and their employees need to be thoughtful about responding to government inquiries. Employees should understand their right not to submit to voluntary interviews outside the presence of counsel, and further know that, contrary to common belief, simply remaining silent may not be enough. The safest course is to affirmatively invoke the Fifth Amendment if you do not wish to answer a question; failure to specifically do so may result in your silence being used against you.

Companies must educate and re-educate their work force on these issues to evade waiver of one of the most fundamental protections afforded in the U.S. Constitution.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this alert or would like to discuss the topic further, please contact your Foley attorney or the following:

Pamela L. Johnston
Chair, Government Enforcement, Compliance & White Collar Defense Practice
Los Angeles, California

Lisa M. Noller
Chicago, Illinois

Brandi F. Walkowiak
Senior Counsel
Detroit, Michigan

Thomas S. Brown
Of Counsel
San Francisco, California

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