The question that has occupied courts' attention is what use the Government may make at trial of the target's conduct in that interrogation. What if the target formally invokes his Fifth Amendment? Can the Government use that at trial? What if the target, without formally invoking his Fifth Amendment, asks to consult with a lawyer? Can the Government use that response at trial. What if the target simply refuses to answer the questions without asserting the Fifth Amendment or requesting to consult with a lawyer?
Guidance on these questions is offered by a recent Second Circuit opinion (Gerard Lynch, J.), United States v. Okatan, 728 F.3d 111 (2d Cir. 2013), here. In that case, the opinion opens with the issue and the conclusion:
This opinion addresses Okatan's challenge to the government's use of evidence that Okatan asked to speak to a lawyer when a border patrol agent initiated an interview prior to his arrest. We conclude that use of this evidence in the government's case in chief violated Okatan's rights under the Fifth Amendment. Because we further conclude that the error was not harmless beyond a reasonable doubt, we VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.The facts, highly summarized, are:
The border patrol agent observed some unusual -- I guess, to him, suspicious -- activity by Okatan. The agent then asked Okatan to explain the unusual activity. Okatan gave a not implausible explanation, but one that, under the circumstances the border patrol agent apparently did not believe. The border patrol agent warned Okatan that "lying to a federal officer is a criminal act" and then began to question Okatan. "Okatan said that he wanted a lawyer. At that point, Boucher placed Okatan under arrest and transported him to the Champlain border patrol station."
Okatan was subsequently charged and tried for an immigration violation. At trial, Okatan moved to suppress all statements to the border patrol agent. The district court suppressed all statements after Okatan asked for a lawyer. Then, during trial, the border patrol agent recounted the circumstances of the arrest, testifying specifically that Okatan had said that he wanted a lawyer. Okatan's counsel objected and was overruled. In closing argument, the prosecutor mentioned the request for a lawyer. Okatan's counsel objected again and was overruled.
Judge Lynch then has a marvelous exposition of the Fifth Amendment in this setting. I recommend that readers of this blog with a keen interest in the subject read the entire opinion.
I summarize the key development of the reasoning, with an extended quote at the end.
1. The Government admitted and the court noted a split in the circuits "over whether a defendant's prearrest silence could be introduced as part of the government's case in chief without violating the Fifth Amendment protection against self-incrimination."
2. The split does not "distinguish between cases involving defendants who simply failed to speak prior to arrest and those involving defendants who affirmatively invoked their right to remain silent," a distinction the Second Circuit had "elided" in an earlier Second Circuit opinion in which the Court "expressed doubt that the Fifth Amendment 'permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the Government's case in chief.'"
3. The distinction "has taken on new importance in light of the Supreme Court's decision in Salinas v. Texas, 570 U.S. , 133 S. Ct. 2174 (2013), here, which was rendered after briefing and oral argument in this case were completed." [JAT Note, I previously blogged on Salinas in Silence in Response to Questions Without Miranda Warning in NonCustodial Setting May Be Evidence of Guilt (Federal Tax Crimes blog 6/18/13), here.]
4. Judge Lynch summarized Salinas as follows:
In Salinas, police officers investigating a shooting asked Salinas during the course of a voluntary interview whether shells recovered at the crime scene would match shells used by a gun to which he had access. Salinas, who until that moment had freely answered the officers' questions, looked down, became tense, and stayed silent. After a few moments, the officers resumed the interview, asking different questions, which Salinas answered. Id. at 2178. Salinas was tried for the shooting. At trial, he did not testify, and the government relied on his silence during the interview as evidence of his guilt. The Court granted certiorari to address whether "the prosecution may use a defendant's assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief." Id. at 2179. However, a plurality of the Court ultimately found it "unnecessary to reach that question," id., holding instead that Salinas's "Fifth Amendment claim fail[ed] because he did not expressly invoke the privilege against self-incrimination in response to the officer's question." Id. at 2178.
While the Supreme Court in Salinas did not decide the question presently before us, it did clarify that the issue as we framed it in Caro — whether the government may use a defendant's prearrest silence as substantive evidence of guilt — is properly analyzed in two parts: first, whether the defendant's silence constituted an "assertion of the privilege against self-incrimination," and second, if so, "whether the prosecution may use [that assertion] . . . as part of its case in chief," id. at 2179.5. With this legal background, Judge Lynch reasoned as follows:
With respect to the first question, we conclude that Okatan successfully asserted the privilege when he told Boucher that he wanted a lawyer. First, we note that Okatan was entitled to invoke the privilege at that time. "[T]he right to remain silent exists independently of the fact of arrest." United States v. Nunez-Rios, 622 F.2d 1093, 1100 (2d Cir. 1980). "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. 479, 486-87, 71 S. Ct. 814, 95 L. Ed. 1118 (1951). Okatan's request for an attorney was made in the course of an interrogation by a border patrol agent. More specifically, Boucher had repeated a question, explicitly suggesting that Okatan's first answer to that question itself constituted a crime. Based on these circumstances, Okatan had "reasonable cause to apprehend danger from a direct answer," id. at 486, and reason to fear that any such answer "might be used to incriminate him in future criminal proceedings," Ramos, 685 F.3d at 126. See United States v. Rodriguez, 706 F.2d 31, 37 (2d Cir. 1983) (finding "clearly a sufficient basis to give rise to a legitimate claim of privilege" by a defense witness in a criminal trial where "it was not at all unreasonable to assume that [the witness] perceived herself to be, and indeed was, still at risk in terms of facing a raft of both federal and state charges").
Second, unlike Salinas, who simply stopped talking during the course of an interrogation, Okatan affirmatively claimed the privilege before he fell silent. See Salinas, 133 S. Ct. at 2179 ("[A] witness who desires the protection of the privilege must claim it at the time he relies on it.") (internal quotation marks and ellipsis omitted). Okatan did not use the words "Fifth Amendment" or "privilege against self incrimination," but such precision is not required. See Quinn v. United States, 349 U.S. 155, 164, 75 S. Ct. 668, 99 L. Ed. 964 (1955) ("[N]o ritualistic formula is necessary in order to invoke the privilege."). A defendant must only put an interrogating official "on notice [that he] intends to rely on the privilege." Salinas, 133 S. Ct. at 2179. In the context of custodial interrogation, "an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease." Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979). Similarly, even when an individual is not in custody, because of "the unique role the lawyer plays in the adversary system of criminal justice in this country," id., a request for a lawyer in response to law enforcement questioning suffices to put an officer on notice that the individual means to invoke the privilege.
We must therefore address the question the Supreme Court left unanswered in Salinas: "whether the prosecution may use a defendant's assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief," Salinas, 133 S. Ct. at 2179. We hold that it may not.
A prosecutor may not comment on a defendant's failure to testify at trial. Griffin, 380 U.S. at 614. As the Supreme Court has explained, such comment would be "a penalty imposed by courts for exercising a constitutional privilege," which "cuts down on the privilege by making its assertion costly." Id. The same logic governs our decision today. Use of a defendant's invocation of the privilege imposes the same cost no matter the context in which that invocation is made. When Boucher, for the second time, asked Okatan why he was in the rest area, any answer Okatan gave "might [have been] used to incriminate him in future criminal proceedings," Ramos, 685 F.3d at 126, and a simple failure to answer might also have been used to incriminate him, see Salinas, 133 S. Ct. at 2184 ("Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it."). The Fifth Amendment guaranteed Okatan a right to react to the question without incriminating himself, and he successfully invoked that right. As the First Circuit has observed, allowing a jury to infer guilt from a prearrest invocation of the privilege "ignores the teaching that the protection of the fifth amendment is not limited to those in custody or charged with a crime." Coppola, 878 F.2d at 1566. n2
n2 Indeed, in its brief on appeal, the government itself paradoxically concedes, without further explanation, "that under the circumstances of this case, it was error for the prosecutor to comment on Okatan's invocation of his right to counsel in summation," even as it argues that admission of Boucher's testimony was not an "abuse [of] discretion." The government's position is self-contradictory. Evidence is admissible when it is relevant to support a legitimate inference; if evidence is properly admitted as relevant to proving guilt, it cannot be impermissible for the prosecutor to explain the relevance of the evidence to the jury. Conversely, if (as the government concedes) it is impermissible for the prosecutor to argue to the jury that Okatan's invocation of his rights is indicative of guilt, there is no other basis on which Boucher's testimony about that invocation is relevant and admissible. Because the Fifth Amendment does not tolerate use of a defendant's invocation of his right to remain silent in the government's case in chief, we see no basis for distinguishing between elicitation of Boucher's testimony and the government's reference to that testimony in closing. See Coppola, 878 F.2d at 1567 ("Although the statement at issue in this case came in through police testimony and not through a comment by the prosecution, it is nonetheless evidence that came before the jury through the efforts and design of the prosecution."). The degree of emphasis placed by the government on such testimony informs any harmless error analysis, but it does not determine whether a constitutional violation occurred.
Accordingly, we conclude that where, as here, an individual is interrogated by an officer, even prior to arrest, his invocation of the privilege against self-incrimination and his subsequent silence cannot be used by the government in its case in chief as substantive evidence of guilt. n3Judge Lynch then holds that the error was not harmless, hence requiring reversal. This too is a good read, so I recommend it, but will not summarize it here.
n3 We note that no Circuit court has reached the opposite conclusion. As discussed above, prior to Salinas the Circuits were divided over whether the government could use a defendant's simple prearrest silence in its case in chief, but the government has not identified, and we have not found, a Circuit case in which use of a defendant's prearrest invocation of the Fifth Amendment and subsequent silence was found constitutional. The Salinas Court suggested there was a split of authority over the latter issue and cited United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991), see Salinas, 133 S. Ct. at 2179, but the defendant in Rivera never invoked the Fifth Amendment. Rather, a customs agent testified that the defendant was "expressionless," was not visibly nervous and said nothing when the agent singled her out for questioning and began to search her suitcase. Rivera, 944 F.2d at 1567. The Eleventh Circuit held that "[t]he government may comment on a defendant's silence if it occurred prior to the time that he is arrested and given his Miranda warnings," id. at 1568, but said nothing about the constitutionality of commenting on a defendant's invocation of the Fifth Amendment. On the other hand, at least three other Circuits have specifically held that a defendant's invocation of rights cannot be used in the government's case in chief. See Combs, 205 F.3d at 286 (where defendant "clearly invoked the privilege against self-incrimination . . . the prosecutor's comment on [his] prearrest silence in its case in chief . . . violated [the] Fifth Amendment"); Burson, 952 F.2d at 1201 ("[O]nce a defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which defendant exercised."); Coppola, 878 F.2d at 1567, 1568 (where defendant's "statement invoked his privilege against self-incrimination," his "constitutional rights were violated by the use of his statement in the prosecutor's case in chief"). While Salinas might affect the viability of these cases to the extent they address the factual circumstances necessary to find an effective invocation of rights, it does not affect their viability with respect to the implications of an effective invocation.