A new outlook on Fifth Amendment rights

And how it applies to corporate investigations.

On Dec. 18, 1992, two Houston brothers were shot and killed. In the weeks following the killings, police brought Genovevo Salinas in for questioning. They charged him with murder in February 1993, but by then he had fled the country; it wasn’t until 2007 that police found Salinas living in Houston under an assumed name and arrested him for the double murder.

At Salinas’ trial, a prosecutor told the jury that Salinas had answered investigators’ questions freely until they asked him whether a shotgun he had voluntarily handed over to police for ballistics testing would match shells police had recovered from the murder scene. At that point Salinas fell silent. “An innocent person” would not have responded like this, the prosecutor told the jury, and instead would have denied his involvement.

This is far from the kind of fact pattern that would usually have any effect on corporations, but white-collar criminal lawyers say the U.S. Supreme Court case that arose out of the initial questioning ofSalinasraises Fifth Amendment issues applicable to corporate investigations.

Specifically, Salinas v. Texas turns on its head the popular understanding of “the right to remain silent” before law enforcement.

“There’s a general notion out there that if you refuse to answer questions from any kind of federal local, or state agent that your silence can’t be used against you, and Salinas sort of blows that notion out of the water,” says Marc Mukasey, head of Bracewell & Giuliani’s white-collar defense and special investigations practice.

Express Requirement

After the jury found Salinas guilty, he appealed to the Texas State Court of Appeals and the Texas Court of Criminal Appeals, claiming that the prosecution’s invocation of Salinas’ silence as evidence of his guilt violated the Fifth Amendment. Salinas lost both appeals and in 2013, the U.S. Supreme Court granted certiorari in his case. The court affirmed the Court of Criminal Appeals’ judgment 5-to-4 on June 17.

“Popular misconceptions notwithstanding, the Fifth Amendment … does not establish an unqualified ‘right to remain silent,’” Justice Samuel Alito wrote in an opinion joined by Chief Justice John Roberts and Justice Anthony Kennedy. Associate Justices Clarence Thomas and Antonin Scalia concurred only in the judgment.

Alito wrote that Salinas would have had to “expressly” invoke his Fifth Amendment right against self-incrimination during the interview in order for the privilege to apply in his case. Instead, he said nothing. “A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Alito reasoned.

The court had ruled in 1966 in Miranda v. Arizona, the case that gave rise to the Miranda warning, that police had to inform individuals they were holding of their right to remain silent. The interview with Salinas, however, was noncustodial. Police had asked him to come to the police station so they could clear him as a suspect. He showed up voluntarily and was free to leave.

Advising Employees

The Supreme Court’s majority holding in Salinas is a reminder that employees, particularly those whom government investigators are more likely to interview, should receive appropriate training on how to handle such questionings.

“A corporation can never instruct an employee not to talk to law enforcement,” says Dan Collins, a former assistantU.S.attorney and now a partner at Drinker Biddle. “But a corporation can let employees know that they have choices, and that those choices include speaking with law enforcement and also not speaking with law enforcement.”

In light of Salinas, Collins says, advice to employees should emphasize the fact that if they choose not to talk, they should affirmatively invoke their right to remain silent as opposed to simply staying silent in the face of questions.

Susan Kohn Ross, a partner at Mitchell Silberberg & Knupp, suggests that corporations advise employees that it is perfectly legitimate to tell an investigator that they don’t know or don’t remember something or that they have to consult their files to jog their memory.

“Training has to start and end with, ‘You’re not under an obligation to answer questions, but you’re free to do so—and if you do, please remember that your answers must be complete and truthful,’” Ross says.

Lawyer Up

Ross says to keep in mind that not every employee is familiar with the idea that the government asks questions all the time, some of which may have nothing to do with the employee’s conduct. Employees from other countries, for instance, might have the mindset that when the government comes to question them, it’s a given they’ve done something wrong.

“There’s a real intimidation factor, and all of these agents know how to play the game,” Ross says.

Employees can also be told that it’s a good idea to postpone an interview until they can talk to a lawyer—no matter how secure they are that they didn’t do anything wrong or how tenuously they may be connected to the subject matter. Investigators might try to ambush them at 6 a.m. or into the night, when it’s harder to get in touch with a lawyer, but employees should know that making such a request won’t put them in jeopardy. All good government agents and prosecutors will respect a request for a lawyer, Mukasey says.

“In my experience both as a prosecutor and as a defense lawyer, people who are approached by the FBI in the white collar arena want to be helpful,” Mukasey says. “They want to answer questions and to explain everything, and sometimes they need a lawyer to protect themselves from their own desire to help.”

Diverging Views

Associate Justice Clarence Thomas joined in a concurring opinion in Salinas v. Texas with Associate Justice Antonin Scalia. They agreed that the court should uphold the Texas Criminal Court of Appeals’ judgment but drew a different line in the sand. Even if Salinas had expressly invoked his Fifth Amendment rights during police questioning, Thomas wrote, the prosecutor could have used Salinas’ silence against him at trial because the prosecutor’s comments did not compelSalinas to give self-incriminating testimony.

Justice Stephen Breyer wrote a dissenting opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer wrote that given the circumstances of Salinas’ questioning in a criminal investigation at a police station without a lawyer representing him and given the question that Salinas remained silent on—whether his shotgun would be linked to shells found at the murder scene—it was reasonable to infer that Salinas’ silence invoked the Fifth Amendment implicitly.

The relevant question in Salinas should be, “Can one fairly infer from an individual’s silence and surrounding circumstances an exercise of the Fifth Amendment’s privilege?” Breyer wrote. “The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court’s case law all suggest that this is the right question to ask here.”

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