Question: Should corporate America take notice of the U.S. Supreme Court’s plurality opinion in a murder case? Answer: Yes, for one simple reason—the plurality’s opinion could have a substantial impact on company representatives (and, by extension, the companies for which they work), as well as individual targets who find themselves entangled in a government investigation.

Last year, the Supreme Court of the United States issued a decision in Salinas v. Texas, 133 S. Ct. 2174 (2013). In sum, the Court held that under certain circumstances, if a person remains silent in response to a government official’s questions, the government may later use that silence against the person in court. The rationale underlying the Court’s opinion was not limited to a murder investigation, or more traditional non-white collar cases. As a result, all individuals should now exercise even more caution in deciding how and when they answer or decline to answer a government official’s questions, or face the risk that their silence may be used against them. Companies should also give greater thought to how their policies and training impact how that situation plays out.

Background

Salinas involved a double murder at a Houston home. No one witnessed the murders, but the police recovered six shotgun shell casings from the scene of the crime. The murder investigation eventually led the police to Genovevo Salinas, who had been with the victims the night before the murder. The police visited Salinas at his home and asked him to accompany them to the police station “to take photographs and to clear him as [a] suspect.” Salinas agreed and voluntarily accompanied the officers.

Once they arrived at the police station, Salinas was taken to an interview room where an officer began to question him. It was undisputed that Salinas was not in custody at that time and therefore did not receive a Miranda warning. At first, Salinas answered all of the officer’s questions. But when the officer asked Salinas whether his shotgun would match the shell casings recovered from murder scene, Salinas fell silent. Salinas’s silence lingered for several minutes while he looked down at the floor, shuffled his feet, bit his lip, clenched his hands, and began to tighten up. Then, when the officer resumed questioning and shifted topics, Salinas began answering again.

Salinas eventually was charged in connection with the murders. He did not testify at the trial. However, during its case in chief, the state elicited testimony regarding the initial police interview of Salinas—namely, Salinas’s sudden silence and suspicious body language in response to the officer’s question about Salinas’s shotgun. Over Salinas’s objection, the state highlighted that testimony during closing argument as evidence of Salinas’s guilt. Among other things, the prosecutor told the jury that an innocent person would have responded, not with silence, but by saying “What are you talking about? I didn’t do that. I wasn’t there.”

On appeal, Salinas challenged the state’s use of his pre-arrest silence as evidence of his guilt, arguing that the state’s tactics violated the constitutional protections afforded to him by the privilege against self-incrimination, derived from the Fifth Amendment. Two Texas appellate courts rejected Salinas’s argument and affirmed his convictions. Those courts reasoned that Salinas’s silence was not “compelled” within the meaning of the Fifth Amendment and, therefore, the state could use that silence at trial as substantive evidence of Salinas’s guilt.

The Supreme Court Weighs In

The Supreme Court granted Salinas’s petition for certiorari in order to resolve one question: whether a defendant’s assertion of the privilege against selfincrimination during a noncustodial police interview may be used by the state as evidence of guilt. However, although the Court reached the same result as the Texas courts, the Court avoided the precise question it had set out to decide. Instead, Justice Alito, writing for a plurality of the Court and joined by Chief Justice Roberts and Justice Kennedy, concluded that the reason Salinas could not benefit from the privilege against self-incrimination was because he had not expressly invoked that privilege during the police interview.

The plurality began from the general principle that the privilege against self-incrimination is the exception, not the rule, and that a person who wishes to benefit from the privilege must expressly claim it. This “express invocation requirement,” the plurality explained, ensures that the government receives sufficient notice that the witness is relying on the privilege and an opportunity either to grant immunity to the witness or to challenge the applicability of the privilege to the given circumstances. The plurality acknowledged that the express invocation requirement has been excused in only two situations: a criminal defendant’s decision not to testify at his or her own trial, and circumstances in which government coercion renders the forfeiture of the privilege involuntary. The first of these exceptions is inapplicable to Salinas’s police interview. As to the second exception, the plurality concluded that nothing had coerced Salinas into forfeiting the privilege involuntarily. Indeed, Salinas did not dispute that his interview with the police was voluntary. Thus, absent any allegation that the police deprived Salinas of the ability to voluntarily invoke the protections of the privilege, he had an obligation either to do so or to forfeit those protections.

Salinas did not rely on either of the two recognized exceptions to the express invocation requirement. Instead, he urged the Court to adopt a third exception for situations in which a witness declines to give an answer that government officials suspect would be incriminating. In other words, under Salinas’s proposed exception, if a government official asks a question with the subjective expectation of receiving an incriminating response, invocation of the privilege should be inferred if the witness does not respond. The plurality rejected that proposed exception. Unexplained silence, the plurality observed, is not so unambiguous that its impetus can automatically be attributed to a reliance on the privilege; rather, unexplained silence might just as well reflect embarrassment, an attempt to protect someone else, or an attempt to “think of a good lie.”

The plurality also expressed skepticism that Salinas’s proposed exception—inferred invocation of the privilege—would be workable. In what was undisputedly a noncustodial setting, if Salinas had made an overtly incriminating statement instead of falling silent, there would be no question that the state could use that statement against him. But the plurality noted the blurred line between silence and expressive conduct. For instance, should Salinas’s anxious body language qualify as an incriminating statement that the state may use as evidence, or silence that is entitled to an inference that Salinas had invoked the privilege? Ultimately, the plurality found no distinction between potentially incriminating statements and potentially incriminating silence— absent an express invocation of the privilege, neither is protected in a pre-arrest, noncustodial setting.

Justice Thomas, joined by Justice Scalia, concurred in the plurality’s result but would have gone further: in his view, Salinas’s argument would fail even if he had invoked the privilege because the prosecutor’s comments did not compel Salinas to give self-incriminatory testimony. Justice Thomas’s position relied on a literal reading of the precise text of the Fifth Amendment, and he lamented what he views as the Court continuing to stray from that text.

Justice Breyer wrote for the dissent. In his view, the circumstances—not an express invocation of the privilege—should trigger the protections of the Fifth Amendment. Relevant circumstances would include fair inferences as to whether the witness is invoking the privilege, whether the questioner has an important need to know whether the witness is invoking the privilege, and whether there is a good reason to excuse the witness from expressly invoking the privilege. Applying those principles to Salinas’s case, Justice Breyer and the dissenters would have deemed Salinas’s silence to be an invocation of his Fifth Amendment rights. Relevant to that conclusion, Justice Breyer noted that Salinas’s silence occurred in the context of a criminal investigation, the police made clear to Salinas that he was a suspect, the interrogation occurred at a police station, Salinas was not represented by counsel, and the officer’s question about the shotgun shells was an obvious attempt to elicit an incriminating response.

The Implications of the Salinas Decision

In the months since the Court issued its decision in Salinas, few courts have had the opportunity to interpret or apply the decision. Of those several courts that have referenced Salinas, all have distinguished it from the facts before them—either because the case involved post-arrest silence, or because the defendant had sufficiently invoked the privilege. And no court has interpreted or applied Salinas in the context of a white collar investigation. However, Salinas has potentially weighty implications for individuals and company employees or representatives who become the target of a government investigation. In addition, although a corporation does not have a Fifth Amendment privilege against self-incrimination, how that corporation’s employees handle the assertion (or nonassertion) of their own personal Fifth Amendment privilege can have a material impact on a company that is a subject or target of a government investigation. Moreover, because the Fifth Amendment applies to the government generally, the potential impact of Salinas is not limited to police or FBI investigations, and may extend to regulatory compliance and other investigations conducted by government agents.

Take, for instance, a common scenario that occurs at the start of many white collar investigations, and is not unlike the scenario in Salinas. A government agent appears at the front door of your home wanting to ask a few questions, probably at an hour of the day when you are least prepared to be answering questions. You are not under arrest, and no one is forcing you to talk. But you may nonetheless feel the urge to answer questions at the outset for any number of reasons—you do not want to be viewed as uncooperative or impolite, the first questions seem harmless, or the investigator is simply an intimidating figure. From a legal perspective, however, none of these reasons will render your answers involuntary because you are not in custody. Then you get a question that, for whatever reason, leaves you drawing a blank—or worse, an abrupt accusatory question, as was the case in Salinas. Suddenly and unwittingly, your long pause and nervous body language become pieces of evidence that could be used against you at a subsequent trial. And when you object, the government will simply point to the Salinas decision as support for its tactics.

Mitigating the Risks

So what precautions can you take in light of the Salinas decision? Many options are available. For example, you have the right to avoid answering any questions in the first place until you obtain advice of counsel. Companies should train their employees about the options available to employees should they be interviewed as part of an investigation. Adequately training and preparing company employees and representatives on how to react in these situations can help take some of the discomfort and uncertainty out of an investigator’s visit, and decrease the likelihood that the employee will do or say something that unintentionally raises risk for the employee and, by extension, the company.

Company employees and representatives also should be prepared to invoke the privilege against self-incrimination expressly, if the circumstances require. Whether an investigator starts out of the gate with accusatory questions, or the target of the questions fails to promptly end the discussion, exercising the privilege may become necessary. Unfortunately, the plurality in Salinas did not articulate what exactly constitutes an “express invocation” of the privilege. For instance, does a person need to use the words “Fifth Amendment?” The Salinas dissent criticizes the plurality for failing to provide clear guidance on this question. To be sure, the plurality recites the long-standing principle that “no ritualistic formula is necessary in order to invoke the privilege.” But given how unhelpful that principle is in practice, erring on the side of “ritualistic formula” may be the most prudent course. Thus, a person wishing to invoke the privilege should clearly state that she is declining to answer because she is relying on the Fifth Amendment privilege and would like to consult with a lawyer.

Government Enforcement & Corporate Investigations Newsletter – Spring 2014 4 A precautionary note, however: although the Salinas plurality strongly suggested that the state cannot use a person’s pre-arrest, noncustodial invocation of the privilege as evidence of guilt, the Court expressly declined to decide that particular question. Thus, it remains an open question whether the express invocation of the privilege can itself be used against a person in court. In United States v. Okatan, 728 F.3d 111 (2d Cir. 2013), a post-Salinas decision issued in August, the Second Circuit concluded that the express invocation of the privilege in a noncustodial setting cannot be used as evidence of guilt. The Second Circuit noted that no other circuit court has reached the opposite conclusion, but the Supreme Court has yet to weigh in on that precise question.