In a recent opinion, Salinas v. Texas, the United States Supreme Court held that if an individual does not “expressly” invoke the Fifth Amendment privilege against self-incrimination in refusing to answer particular questions during a voluntary police interview, a prosecutor can use the individual’s silence in the face of those questions as evidence of the individual’s guilt. According to the Court, an individual does not sufficiently place the government on notice that he or she is asserting the Fifth Amendment privilege simply by remaining silent when asked a question. The Court noted there could be other reasons for an individual’s silence: for example, the individual might simply be “trying to think of a good lie” or refusing to incriminate a friend. Thus, the Court reasoned, requiring an “express” invocation of the Fifth Amendment (e.g., “I am refusing to answer that question based on my Fifth Amendment rights”) ensures a court can evaluate whether the individual is, in fact, entitled to the Fifth Amendment’s protection.

Two Justices who concurred in the judgment would have gone even further—arguing that even if the individual had expressly invoked the privilege against self-incrimination, the Fifth Amendment would not preclude a jury from drawing an adverse inference from the invocation of such right.

Although Salinas arose from a murder investigation, the Court’s reasoning applies equally in all non-custodial settings, including to a corporate officer or other company employee who is approached by government investigators and agrees to be interviewed. The Court’s holding suggests that if a corporate officer agrees to a voluntary interview and, thereafter, declines to answer a question or falls silent without “expressly” invoking the Fifth Amendment, that silence may be used as evidence in future proceedings, both against the individual and, possibly, against the corporation itself. Although the Court did not specify what language would properly invoke the privilege against self-incrimination, caution suggests it would be wise to include the words “Fifth Amendment” when relying on the privilege in refusing to answer a question. It is common for corporate counsel to advise corporate officers that if a government investigator unexpectedly approaches the officer to ask questions, the officer should decline to answer those questions and instead direct the investigator to speak to counsel. This appears to remain a sound approach. However, if officers and employees begin to answer questions, and thereafter refuse to answer particular questions without either requesting the assistance of an attorney or expressly noting Fifth Amendment rights, that refusal may be deemed admissible against both the individual and the corporation. As a result, corporate counsel may wish to address this scenario and the consequences that could flow from it with relevant officers and employees.