At the outset of a white collar investigation, counsel will invariably advise the client that if a government investigator unexpectedly appears seeking to "just ask a few questions," the client should politely decline and direct the investigator to counsel. Although the Supreme Court's decision this past Monday, June 17, 2013 in Salinas v. Texas relates to police questioning in the context of a murder investigation, it has implications for this common aspect of white collar investigations.
In Salinas, two individuals were shot and killed, and the police recovered six shotgun shell casings at the scene. The police paid a visit to Salinas, whom they had begun to suspect, and he agreed to accompany the officers to the station. The police questioned Salinas for an hour, during which he was free to leave—in legal terms the questioning was "non-custodial"—and thus Miranda warnings were neither required nor given.
For most of the interview, Salinas answered the police's questions. But when the officer asked Salinas whether his own shotgun would match the shell casings recovered at the scene, he fell silent, and according to the police, looked down, shuffled his feet and bit his lip. After a few moments of silence, the officer asked Salinas additional questions, which he answered. At trial, during closing argument, the prosecutor pointed out to the jury how Salinas had remained silent when asked about the shotgun, arguing that an innocent person would not have done so.
The Supreme Court accepted review of the case to resolve a split in the lower courts on whether the prosecution may use evidence that a defendant asserted the privilege against self-incrimination during a non-custodial police interview. But the Supreme Court's plurality decision did not reach that issue. Instead, three justices, Alito, Kennedy and Chief Justice Roberts, found that Salinas's challenge to his conviction failed because he did not expressly invoke the Fifth Amendment privilege. The plurality relied on prior decisions holding that to ensure that the Fifth Amendment was not being asserted too broadly and to allow the government to challenge an assertion or overcome it by granting immunity, a witness must expressly invoke the right to obtain its benefits. The plurality reasoned that there could be many explanations for silence in the face of questioning, and if the witness's reason was the Fifth Amendment, he was obligated to say so. The plurality's view carried the day because two other justices, Scalia and Thomas, took an even narrower view of the protections of the Fifth Amendment.
In a vigorous dissent joined by three other justices, Justice Breyer pointed out that the Court had repeatedly held that "no ritualistic formula is necessary to invoke the privilege," and that whether the right was invoked turned on the circumstances. The particular circumstances in this case — questioning of an unrepresented suspect in a criminal investigation at the police station – made it obvious that Salinas was invoking his fundamental Constitutional right to remain silent.
Other than the simple oddness of the results seeming to turn on whether or not the individual uses the magic words "Fifth Amendment," another initial observation about Salinas is its apparent reach. There is nothing about the decision or its reasoning that would seem to limit its application to police questioning at the station house, or would prevent it from applying to any law enforcement or other questioning where the witness is not in custody. In short, it would seem to apply to any witness interview by the government.
Salinas also would seem to be contrary to the expectation of many lawyers, much less laypersons, that the government cannot comment at all on a suspect's silence or failure to respond to questions. Under the rationale of Salinas, if investigators show up unannounced at a witness's house, and the witness declines to speak to them, or worse starts to speak and then stops the interview, if the witness does not expressly refer to the Fifth Amendment the government would appear to be free to argue at a later trial that the refusal to answer questions was an indication of guilt.
Of course, depending on the circumstances, the inference that declining to speak to investigators suggests guilt can be stronger or weaker. If the witness says that now that she thinks about it, her company would not want her to answer any further questions without first speaking to company officials, the inference might be weak enough that a prosecutor would not make the argument, even if it is permissible under Salinas. But if the witness decides to follow company procedure only when the questioning approaches a sensitive area, it would seem that Salinas would give a prosecutor the option to later argue that the termination of the questioning at that particular point is an indication of guilt.
As the Salinas dissent points out, because of its focus, the plurality's ruling seems to open up future dispute regarding whether the individual's words or actions are clear enough to invoke the privilege. Decisions in this area suggest that if a witness mentions the word "lawyer" in declining to speak to investigators, courts are more likely to view that as an invocation that cannot be commented upon. Future decisions might also limit Salinas's rule to cases where the witness was silent on only one question or a limited number of questions in the midst of an interview, viewing an express refusal to answer any further questions as clear enough notice that the witness is invoking the Constitutional privilege.
Of course the most basic and obvious lesson of Salinas is that a potential law enforcement target should never speak to an investigator without counsel. The less than intuitive rule announced in Salinas provides yet another argument for the wisdom of this oft repeated but not invariably followed advice.
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