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Protecting The Right To Remain Silent During Law Enforcement Questioning

JURIST Guest Columnists Hank Asbill, Brian Murray, and Andrew Pinson of Jones Day argue that allowing prosecutors to use a defendant's refusal to answer pre-arrest, pre-Miranda law enforcement questioning as substantive evidence of guilt violates the Fifth Amendment and would permit abusive tactics and government overreaching in white-collar criminal investigations in particular...

The ubiquitous Miranda warning explains that "you have the right to remain silent." It then reminds you that when government agents ask you questions, anything you do say "can and will be used against you in a court of law."

But what if you don't say anything? What if government agents approach you and ask you a question, and you refuse to answer? Can your silence in response to their questioning also "be used against you" in court if you're later prosecuted for a crime? If it can, does your right to remain silent really protect you from self-incrimination?

These are the questions the US Supreme Court will seek to answer when it hears oral arguments in Salinas v. Texas. Specifically, the Court will consider whether the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda warnings. In practical terms, the Court's decision in the case will have serious implications for every individual, innocent or not, who is questioned by law enforcement.

Petitioner Genovevo Salinas's case presents the issue as it would often arise in the prosecution of a typical street crime. While investigating the 1992 murders of Juan and Hector Garza, the police interviewed Salinas, who had attended the Garzas' party the night before. Salinas answered their questions — except when they asked him whether his father's shotgun would match the shells recovered at the crime scene. At that point, he simply looked at the floor and shuffled his feet.

His silence would secure his conviction. Salinas was eventually charged and tried for the Garzas' murders after a friend told the police that Salinas had confessed to him. The jury deadlocked in his first trial. Upon retrial, the prosecution took a different tack, emphasizing for the first time Salinas's refusal to answer the question about the shells. During its case-in-chief, the police testified at length about Salinas's non-response, and the prosecutor argued in closing that Salinas, if innocent, would have answered the question. Over Salinas's objection that using his silence against him in this way violated his Fifth Amendment privilege against compelled self-incrimination, the jury found him guilty of murder. In short, the government was able to move the jury's needle from deadlock to a guilty verdict by treating Salinas's exercise of his right to remain silent as key evidence of his guilt.

The Texas Court of Criminal Appeals affirmed the judgment, holding that the Fifth Amendment privilege against compelled self-incrimination doesn't apply before a suspect has been arrested or read his Miranda rights. The Supreme Court granted certiorari.

The legal argument for reversal of the Texas court's judgment is straightforward. The Fifth Amendment guarantees individuals a right to remain silent as a core protection against compelled self-incrimination. The Supreme Court has already held in a 1965 case, Griffin v. California, that the government impermissibly encroaches on that right when prosecutors comment on (or introduce as evidence) a defendant's decision to remain silent at trial. (Silence is hardly useful protection against self-incrimination if the government can use it to incriminate.) Left to decide in Salinas is whether the Griffin rule applies with equal force when the defendant's silence comes in response to investigatory questioning rather than at trial.

Logic tells us it must. In cases like Malloy v. Hogan, Garrity v. New Jersey, and Marchetti v. US, the Court has already established that individuals may exercise their right to remain silent in a variety of contexts before arrest or the reading of Miranda rights, including during investigations. If the Court still considers the Griffin rule a required safeguard of the right to remain silent— i.e., if Griffin remains good law — then Griffin's protection of that right must apply whenever the right may be exercised, including during government investigations.

Other briefs on Salinas's behalf have outlined the broad implications of a contrary result. If the Supreme Court were to affirm the Texas court, prosecutors across the country could take full advantage of this newly available "guilt-by-silence" evidence. As the Supreme Court has noted, silence is insolubly ambiguous with respect to determining guilt because many people refuse to answer investigators' questions for reasons having nothing to do with guilt — e.g., waiting to speak with a lawyer, taking a lawyer's advice, mistrust of law enforcement, indignation, embarrassment or poor memory. Yet, as with Salinas, prosecutors could strengthen weak cases against even innocent defendants by introducing this silence "evidence" at trial and asking the jury to infer guilt from it (and juries are often irrationally quick to do so). Prosecutors could also threaten individuals with that later use of their silence to deter them from exercising their right to remain silent during questioning in the first place: "You know, an individual with nothing to hide would answer this question, and you can bet the DA will tell that to the jury." The result for individuals questioned by law enforcement would be just the sort of damned-either-way dilemma the framers had in mind to prevent when they drafted the Fifth Amendment; whether they speak or remain silent, they would be forced to risk self-incrimination.

Less attention has been paid to the practical effects of these tactics outside the context of street crimes. Focusing for a moment on white-collar crime can underscore the significant unfairness and constitutional deficiencies of the rule adopted by the Texas court. In a white-collar case, guilt-by-silence evidence would be unusually burdensome and prone to abuse. "Incriminating" silence would be both easy to manufacture and particularly effective as pressure used to induce individuals to speak, making the resulting catch-22 of self-incrimination especially cruel.

The nature of a white-collar investigation makes obtaining guilt-by-silence evidence easy. These investigations generally involve complex and wide-ranging conduct and transactions, offering investigators numerous chances and reasons to interview a targeted individual (and thus more potentially incriminating non-responses). And overlapping jurisdiction (Department of Justice, Securities and Exchange Commission, Federal Bureau of Investigation and state attorneys general) only multiplies the number of opportunities to secure incriminating silence. Further, at least for initial or (all-too-common) surprise interviews, targeted individuals may be more likely to remain silent than suspects of other crimes because they are both unprepared to deal with questioning about complex or long-ago transactions and guided by instinct — gained from constant contact with in-house counsel and compliance officers — to provide no answers before consulting with their lawyers.

In short, a street-crime investigation may produce a single piece of guilt-by-silence evidence; a white-collar investigation would likely generate a whole stack. And if a non-response to a single question sufficed to convince a jury of Salinas's guilt, how much more effectively could prosecutors secure an indictment and conviction for a white-collar crime by using dozens of a defendant's non-responses against him? Even innocent targets could easily be ensnared by such a scheme.

The likely increased effectiveness of guilt-by-silence evidence in white-collar cases would also magnify its coercive power when used by investigators as a threat to induce a response. Even just indictment on white-collar charges brings harsh financial and reputational consequences to all involved. (Arthur Andersen, remember, was shuttered well before its case reached trial.) If maintaining their silence would speed such consequences along, white-collar targets would be far less likely to view silence as the prudent approach (despite its constitutional role as protection against self-incrimination). In white-collar investigations, speaking to law enforcement creates an especially high risk of self-incrimination — many white-collar offenses (e.g., securities fraud, mail and wire fraud) are charged under notoriously expansive yet vague statutes and regulations. Speaking to investigators can even create new "cover-up" crimes like false statements and obstruction of justice, which prosecutors have increasingly turned to for securing convictions in white-collar cases when the charge initially under investigation doesn't hold water.

Viewing Salinas through the lens of white-collar investigations and prosecutions, it becomes even more clear that failing to apply the Griffin rule to the investigatory setting sets up a system both ripe for abuse and at odds with the Fifth Amendment privilege against compelled self-incrimination. On one hand, it would gut the amendment's chief protection against self-incrimination by letting the government indict and convict an individual by using his silence against him. At the same time, eliminating that safe harbor would place intense pressure on individuals to risk self-incrimination by speaking to investigators. And at bottom, once the government targeted an individual for investigation, he would have little choice but to provide the government "evidence," whether in the form of silence or speech, that would help prove a case against him. If the Fifth Amendment's privilege against compelled self-incrimination affords individuals any protection at all, it bars the government from ensnaring individuals in dilemmas like that.

Hank Asbill is a partner at Jones Day with extensive first-chair jury trial and appellate experience, successfully defending individual and corporate clients for more than three decades against a broad spectrum of criminal and civil charges. Hank is a Fellow of the American College of Trial Lawyers and an Advisory Committee member of the National Association of Criminal Defense Lawyers' White Collar Criminal Defense College. He has served in the past as two-term director of NACDL, president and Fellow of the American Board of Criminal Lawyers, and president of the D.C. Association of Criminal Defense Lawyers. He holds a J.D. from Georgetown University and an A.B. from Princeton University.

Brian Murray is the founding partner of Jones Day's Issues & Appeals Practice in Chicago. Brian has extensive trial and appellate litigation experience, representing clients in complex litigation and class actions in federal and state courts across the country. He also teaches Complex Litigation at the University of Chicago Law School and serves on the Seventh Circuit Bar Association and the American Inns of Court Foundation Board. He is also a former law clerk to Justice Antonin Scalia, and holds a J.D. and a B.S. from the University of Notre Dame.

Andrew Pinson is an associate at Jones Day, where he focuses on appellate litigation and complex trial litigation in a variety of substantive areas. He is a former law clerk to Judge Sentelle of the U.S. Court of Appeals for the D.C. Circuit, and holds a J.D. and B.B.A. from the University of Georgia.

Suggested citation: Hank Asbill, Brian Murray and Andrew Pinson, Protecting The Right To Remain Silent During Law Enforcement Questioning, JURIST - Sidebar, Apr. 11, 2013, http://jurist.org/sidebar/2013/04/asbill-murray-pinson-salinas.php

This article was prepared for publication by Sean Gallagher, the head of JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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