On June 17, the U.S. Supreme Court issued a decision in Salinas v. Texas, 133 S. Ct. 2174 (2013). The defendant, Genovevo Salinas, had voluntarily accompanied police officers to their station for questioning about a double homicide. Since he was not under arrest and free to leave at any point, Salinas was not issued a Miranda warning. Salinas answered the officer’s questions until he was asked whether shotgun casings found at the scene belonged to his gun. Salinas said nothing and, according to testimony, shifted nervously in his seat. At his subsequent trial, prosecutors used the fact that Salinas had not answered that question as evidence of his guilt. Salinas’ attorney argued that such evidence was inadmissible as Salinas had effectively invoked his Fifth Amendment privilege when he refused to answer the officer’s question. The trial court disagreed and Salinas was subsequently convicted and sentenced to 20 years in prison.

After losing appeals in both the Houston Court of Appeals and the Court of Criminal Appeals in Texas, the Supreme Court granted Salinas certiorari to answer whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case-in-chief. That question, however, was never reached as the Court held that Salinas’ silence was not an invocation of his Fifth Amendment privilege.

In the plurality opinion authored by Justice Alito and joined by Justices Kennedy and Roberts, the Court recited the two existing exceptions to the general proposition that a defendant must expressly invoke his Fifth Amendment privilege in order to enjoy its protections: 1) a criminal defendant need not take the stand to assert the privilege at his own trial, and 2) a witness’s failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. The Court declined to create a third exception to the express invocation requirement where a witness chooses to stand mute rather than give an answer that officials suspect would be incriminating during a voluntary interview. The Court went on to state that the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness, and that forfeiture of the privilege need not be knowing.

In a concurring opinion, Justice Thomas, joined by Justice Scalia, found that Salinas had invoked the privilege, but would have allowed the prosecution to use evidence of Salinas’ silence against him at trial—essentially holding that an individual has no protection under the Fifth Amendment when he submits to voluntary questioning by authorities.

In the dissenting opinion, Justice Breyer, joined by Justices Sotomayor, Kagan and Ginsburg, wrote that courts should examine the specific circumstances surrounding an individual’s encounter with police to decide whether the person’s silence was, in fact, an attempt to invoke his Fifth Amendment privilege. The dissent found persuasive the fact that the questioning was in the context of a criminal investigation, police made clear to Salinas that he was a suspect, his interrogation took place at a police station and he was not represented by counsel.

Although Salinas v. Texas involved a homicide prosecution, the Court’s decision has broader ramifications—particularly, in the white collar arena. In the context of white collar criminal investigations, employees may be asked to submit to voluntary questioning by authorities (e.g., during a raid of company offices or an after-hours visit by authorities to an employee’s home). If an employee voluntarily submits to such questioning and is asked a question he does not want to answer on the grounds that any information he provides may be incriminating, the Court’s decision makes clear that he will need expressly to invoke his Fifth Amendment privilege in declining to answer the question. Silence or refusal to answer a question will likely not be read as an invocation of the employee’s Fifth Amendment privilege, and his silence may be used against him in a subsequent prosecution as evidence of guilt.

Accordingly, companies should revise their internal policies to inform employees that while they are free to speak to authorities, they must expressly invoke their Fifth Amendment privilege if they choose not to answer a question that would provide information that could be personally incriminating. Additionally, companies should make it clear to employees that even if they are inclined to speak with authorities, they may politely decline to do so unless or until they have the opportunity to seek the advice of counsel.

Sample policy language might include the following:

If the employee decides that he or she wants to submit to an informal interview, the employee can insist that he or she will go forward only in the presence of counsel. Counsel for [the Corporation] is ready, willing and able to accompany any witness or attend any informal interview. Alternatively, the employee may choose to be accompanied by his or her private counsel. Under any circumstances, the employee should tell the truth, and failure to do so may in itself be a violation of law. The employee should also be aware that if he or she commences an interview but subsequently decides to refuse to answer specific questions that the employee views as potentially incriminating, the refusal to answer such questions may later be used against the employee if he or she fails to expressly invoke the Fifth Amendment privilege during the interview.