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Article: July 2013 White Collar Litigation Update

July 01, 2013
Business Litigation Reports

Supreme Court Permits Prosecution’s Comments Regarding Suspect’s Silence Where Suspect Did Not Specifically Invoke Fifth Amendment.
During government investigations, counsel regularly advise their clients that if a law enforcement agent unexpectedly shows up at their home or office, the client should decline to be interviewed and instead direct the agent to counsel. A recent decision by the Supreme Court highlights the risks of failing to precisely follow that advise. In Salinas v. Texas, the Court held that a suspect must affirmatively invoke the Fifth Amendment and cannot simply remain silent in response to non-custodial questioning in order to avoid potential adverse inferences.

Petitioner Genovevo Salinas was asked to come to the police station to voluntarily answer questions regarding a murder investigation. He was not arrested and the police did not give him Miranda warnings. During the interrogation, Salinas agreed to give the police his shotgun. He was then asked whether a ballistics test would show that the shotgun shells found at the murder scene would match his shotgun. Salinas did not answer the question, but instead “looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began to tighten up.” After a few moments of silence, the officer asked additional questions, which Salinas answered.

Salinas was later charged with murder, but fled. He was arrested 15 years later. He did not testify at trial. During closing argument, the prosecutor highlighted his silence in response to the question about the shotgun and argued that his silence was evidence of guilt because an innocent person would have provided an exculpatory response when asked whether the shotgun shells would match those recovered at the murder scene. Salinas was convicted and his conviction was upheld on appeal.

The Supreme Court granted certiorari to resolve a split in the lower courts as to whether the prosecution may use evidence of a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. However, the Court did not resolve that issue because it concluded that defendant had not even asserted the privilege. Justice Alito and two justices concluded that before petitioner could rely on the privilege against self incrimination, he was required to invoke it, which by remaining silent, he had not done. Justice Thomas wrote a separate opinion, to which Justice Scalia joined, concurring in the judgment.

Justice Alito began his analysis by restating the rule that “a witness who ‘desires the protection of the privilege . . . must claim it’ at the time he relies on it” (quoting Minnesota v. Murphy, 465 U.S. 420, 427 (1984). The Court identified two exceptions to this general rule. The first exception was delineated in Griffin v. California, which held that criminal defendants do not need to invoke the privilege at their own trials in order to benefit from its protection. 380 U.S. 609, 613-615 (1965). The second exception applies in inherently coercive situations where the forfeiture of the privilege cannot be said to have been voluntary. Justice Alito concluded that petitioner’s situation did not fall within either of the two exceptions because he was not a criminal defendant at trial when he made the statement, and there were no allegations that his failure to assert the privilege was involuntary.

Petitioner argued that the Court should adopt a third exception to the invocation requirement for situations where a witness stands mute and declines to give an answer. The plurality declined to create this additional exception, stating that prior decisions established that invocation of the privilege must be express. The Court emphasized the importance of putting courts on notice of the reason for remaining silent so that they can evaluate the merits of the Fifth Amendment claim, which requires express invocation. Finally, the Court rejected petitioner’s argument that requiring express invocation would be unworkable in practice.

Justice Thomas suggested that petitioner’s claim would have failed even if he had expressly invoked the privilege because he was not “compelled” to give the self-incriminating testimony. Thomas rejected the Court’s holding in Griffin, that adverse inferences could not be drawn from a defendant’s failure to testify.

Justice Breyer wrote a dissent, to which three other justices joined, stating that, in his view, the Fifth Amendment precluded the prosecution from commenting on petitioner’s silence in response to a question during a voluntary interrogation. The dissent’s analysis differs from that of the majority because the dissent argues that the Court’s precedent does not require that a witness expressly mention the Fifth Amendment in order to invoke the privilege and receive its protection, and that invocation can be inferred from the circumstances. Under this approach, a witness only needs to invoke the privilege explicitly where it is not clear from the circumstances that the witness intends to invoke the privilege or where the questioner has a special need to know whether the witness is invoking the privilege—neither of which apply to petitioner. Justice Breyer argued that the circumstances surrounding petitioner’s questioning gave rise to a reasonable inference that he intended his silence to serve as an exercise of his Fifth Amendment rights. Thus, he reasoned that because petitioner properly invoked the privilege by remaining silent, it was impermissible for the prosecutor to comment on petitioner’s silence.

Although Salinas involves police questioning in the context of a murder investigation, there is nothing about the decision that would limit its application to any law enforcement questioning where the witness is not in custody. Thus, whenever a witness declines to speak to an agent without expressly referencing the Fifth Amendment, the government would appear to be free to argue that the refusal to answer questions was an indication of guilt. Salinas did not identify the specific words that would invoke the privilege and prohibit an adverse inference. In order to minimize the risk of any such adverse inference, in-house and outside counsel may wish to remind witnesses not to speak to law enforcement without counsel present and that if approached they should utter the magic words, “I invoke my Fifth Amendment right to remain silent.” The assertion of constitutional protections would not seem to require such a formalistic approach, but the current Court appears to believe otherwise.