On June 17, 2013, the Supreme Court of the United States issued an opinion with important implications for anybody who wishes to remain silent when interviewed in connection with a criminal investigation whether they know it matters or not. In Salinas v. Texas (June 16, 2013) the Supreme Court held that a person, not technically in custody, who chooses to remain silent when questioned by authorities, must assert his right to remain silent under the 5th Amendment of the Constitution or the Government may comment on his silence as evidence of guilt. The Supreme Court's decision significantly affects how law enforcement practices will be executed in the future, including, but not limited to, how police question individuals and how and whether they advise people of their Miranda rights. Furthermore, the court's decision will affect the way prosecutors introduce evidence and attempt to imply a person's guilt based upon their silence.
Foreshadowing such a decision, The Wall Street Journal wrote an investigative article in 2011 focusing on the unsolvable problem of an escalating number of government inspections and investigations, shrouded by a smokescreen of government agencies as the front-line enforcers of these new criminal laws ("Federal Police Ranks Swell to Enforce a Widening Array of Criminal Laws," WSJ, Dec. 17, 2011). The article notes as such laws are passed the regulations will be more complicated to navigate, remarking "the knock on the door is increasingly likely to come from a dizzying array of [ ] police forces tucked away inside lesser-known crime-fighting agencies." And such criminal investigators or "inspectors" simply put, agents of the government may not be your friends. While the stark figures presented by the Journal spoke for themselves to a degree, they also serve as an opportunity to issue a reminder regarding a fundamental lesson -- never speak to government investigators, whether they are local, state or federal, outside the presence of counsel. The inherent criminal, financial and reputational risks of missteps when dealing with them outweigh the costs of seeking competent white collar counsel. If nothing else, the primary take away from last week's decision and the 2011 Journal piece is that "Government agencies of all stripes have become the front-line enforcers of the laws Congress has written in the the past four decades." Indeed, "as more criminal laws are passed, the number of regulations that can ensnare people grows as well," which can be seen in the outcome of last week's decision.
Friend or Foe?
In Salinas the facts were that there was a shooting death, and police officers questioned Salinas while in the police stationhouse without counsel and deemed not to be "in custody." He was not, therefore, given any warning pursuant to Miranda v. Arizona about his right to remain silent. He answered questions that were asked of him, but remained silent and did not respond to the question "Will ballistics tests show that these shotgun casings came from your shotgun?" Thereafter he was prosecuted for murder and convicted after a trial in which the prosecutor commented on his failure to respond to the question. Had Salinas told the cops that he refused to answer because the answer might tend to incriminate him no comment would have been permitted, but with the a mere exercise of his right to remain silent, without articulation of its constitutional basis, prosecution comment on his silence was upheld.
Under federal law (18 U.S.C. 1001), it is a felony to lie to an agent of the United States. If you do not answer questions, your silence may be used against you in a court of law unless you correctly assert your Constitutional right to remain silent because a truthful answer might tend to incriminate you. Obviously if you say that, the investigators will focus on you as the target.
Agents of the government may use a strategy, known as an "ambush," to seek cooperation under the guise of "just answering a few questions" or taking "just a few minutes to help out." Even in the most innocuous seeming circumstances, investigators are skilled at extracting information even though blatant interrogation-style questions are not asked. If there has been misconduct, it will not be possible to "explain away" the problem by cooperating on the spot by attempting to placate or befriend the agent, or by volunteering information. The empowerment of dozens of new agencies with policing powers in the decades past have granted authority to agencies who are inexperienced or unfamiliar with traditional methods of law enforcement groups such as the FBI which has more than a century of experience. To minimize the risks of excessively aggressive government investigators, if approached, it is necessary to be courteous but cogent, stating that you have or will retain counsel, and are not in a position to discuss anything until further discussion with your attorney.
You Have the Right to Remain Silent...Or Do You?
A second caution favoring silence is the binding nature of any statements that are made. When investigators first make a telephone call or seek a voluntary interview, they are often seeking to get an interviewee to make an affirmative statement to which he or his company can later be bound. In other circumstances, incorrect statements of fact -- whether intentional falsehoods or bona fide mistakes -- may be subject to prosecution as "false statements" carrying a hefty fine or up to five years in prison. To complicate matters, when counsel is not present during an interview, the risk of misinterpretation by the agent of what you say increases exponentially. When an agent puts information from notes taken during an interview into a formal report, that information is virtually written in stone whether it is correct or based on a misunderstanding of what was said. When the investigation is later pursued by other agents or a prosecutor, such early reports are relied on as fact even if the interviewer or interviewee made a mistake.
Where Immediate Cooperation Is Compelled by Law, Proceed with Caution
Numerous agencies are tasked with enforcing tens of thousands of laws and regulations, including traditional enforcement bodies such as the FBI, Secret Service, DEA, ATF or Postal Service. For many regulated industries, such as financial services, farm and agriculture, oil and gas, communications, transportation, pharmaceuticals, engineering and construction, or energy, specific regulators are entitled to random "routine" investigations. In such circumstances, the government may be entitled to immediate site access or examination of certain books and records. Seeking advice or presence of counsel simply may not be feasible when the government investigators arrive at the door. However, making records available, even if required by law to do so, does not mean that you have to talk.
Below are three fundamental requirements that should be in place to handle such requests when they occur.
Distribute an operating policy in an annual memorandum, detailing the procedure to be employed upon the arrival of government representatives. This will allow both the individual and corporation to proceed with prudence and in accordance with pre-existing legal requirements. The memorandum should be put in place well before an issue arises and should be drafted with the assistance of counsel.
Second, spell out a detailed outline of the specific contours to which the government is entitled. Your cooperation should be tailored to strictly limited access based on the requirements of the law. Rarely, if ever, is the government entitled to unfettered access to full files or records. Providing access greater than necessary can only result in harm.
Lastly, the policy must require employees to immediately contact counsel and provide a mechanism for doing so. While the ambush telephone call or site visit may purposefully occur at a time that creates intentional inconvenience, internal corporate policy should require all employees to actually speak with in-house counsel, at a minimum, before yielding access to any files, and specialized outside counsel should be involved immediately. It is proper to instruct employees to be polite but insistent in refusing access until counsel has been alerted and had the opportunity to participate.
Ideally, you already have in place a plan to get in touch with counsel and to deal with the presence of an investigation well before investigators arrive at your doorstep. However, even the most comprehensive preparation cannot anticipate the vast array of situations that may arise. From the above discussion, there is one unavoidable conclusion- at the first sign of trouble, always seek the advice of competent White Collar counsel before submitting to any questioning posed by the government. Unless required otherwise, do not speak with the government, be courteous but firm in this conviction, and contact counsel immediately. Your refusal to talk will be based on the absence of counsel, not an assertion of your right to incriminate yourself. That is based on the 6th Amendment rather than the 5th Amendment, but the immediate priority should be the same -- you.