Silence in Response to Questions Without Miranda Warning in NonCustodial Setting May Be Evidence of Guilt (6/18/13)

Two days ago, I posted a blog discussing a case where the defendant argued that the prosecution had improperly used his failure to respond to the IRS during the IRS investigations against him in a criminal case.  See Third Circuit Speaks on Fifth Amendment and Willfulness in Tax Case (Federal Tax Crimes Blog 6/16/13), here, discussing United States v. Bean, 2014 U.S. App. LEXIS 11810 (3d Cir. 2013), here.  Yesterday, the Supreme Court decided a case involving a variation of that issue.  The case is Salinas v. Texas, 570 U.S.    , 133 S. Ct. 2174 (2013), here.  The gravamen of the case is reflected in the Syllabus, which I quote in full, omitting case citations, quotation marks and page citations for better readability):

Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment. 

Held: The judgment is affirmed. 

369 S. W. 3d 176, affirmed. 

JUSTICE ALITO , joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. 

(a) To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who desires the protection of the privilege . . . must claim it at the time he relies on it. This Court has recognized two exceptions to that requirement. First, a criminal defendant need not take the stand and assert the privilege at his own trial. Petitioner’s silence falls outside this exception because he had no comparable unqualified right not to speak during his police interview. Second, a witness’ failure to invoke the privilege against self-incrimination must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Petitioner cannot benefit from this principle because it is undisputed that he agreed to accompany the officers to the station and was free to leave at any time.

(b) Petitioner seeks a third exception to the express invocation requirement for cases where the witness chooses to stand mute rather than give an answer that officials suspect would be incriminating, but this Court’s cases all but foreclose that argument. A defendant normally does not invoke the privilege by remaining silent. And the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. For the same reasons that neither a witness’ silence nor official suspicion is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, they do not do so together. The proposed exception also would be difficult to reconcile with [a prior case], where this Court held in the closely related context of post-Miranda silence that a defendant failed to invoke his right to cut off police questioning when he remained silent for 2 hours and 45 minutes.  

Petitioner claims that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case like his, but such silence is “insolubly ambiguous.” To be sure, petitioner might have declined to answer the officer’s question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his right to remain silent. But the Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself, not an unqualified right to remain silent. In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing.  

(c) Petitioner’s argument that applying the express invocation requirement in this context will be unworkable is also unpersuasive. The Court has long required defendants to assert the privilege in order to subsequently benefit from it, and this rule has not proved difficult to apply in practice.

JUSTICE THOMAS, joined by JUSTICE SCALIA , concluded that petitioner’s claim would fail even if he invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony. [Prior case], in which this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify, should not be extended to a defendant’s silence during a precustodial interview because Griffin lacks foundation in the Constitution’s text, history, or logic.

JAT Comment:  The law is clear that, whether under oath or responding to a federal agent's questions, the witness's choice is to tell the truth or stay silent; he has no right to tell a lie which would be a crime.  So, in the course of the many contacts a taxpayer may have with the IRS, his choice is to tell the truth or stay silent.  Salinas establishes is some risk that staying silent without specifically invoking a Fifth Amendment privilege.  Of course, the silence to be persuasive as evidence of guilt will have to permit a reasonable inference of guilt from the silence.  Not all silences, in context, would permit a reasonable inference of guilt.  But some silences could.

For example, let's say a tax relevant document is back dated and the fact of being back-dated would probably defeat the tax benefit the taxpayer claimed that was being audited.  During the course of the audit, the agent asks the taxpayer whether the document was backdated.  Certainly, if the taxpayer invokes his Fifth Amendment to answer the question, the prosecutors cannot rely upon his refusal to answer the question as evidence of guilt.  But, if the taxpayer does not answer the question or evades the question, then the prosecutors might be able to rely on any inference of guilt that the conduct permits.

For a good initial commentary, see Jonathan Turleys blog, The Price of Silence: Supreme Court Rules That Pre-Miranda Silence Can Be Used Against Defendant To Prove Guilt (Jonathan Turley Blog 6/17/13), here, calling Salinas (1) "a  major loss for individual rights vis-a-vis the police;" and (2) "In my view, it was one of the most significant rulings of the term. (Of course, given the result is was “significant” in a negative way — the way that the Hindenburg was a 'significant' moment for airship travel)."  The comments to Professor Turley's blog entries are usually pretty good, and this entry is no exception.

Addendum on 6/22/13 8:10am:

I just added the following to my Federal Tax Crimes Book:

(4) Silence During the Interview.

There is little question that, in a noncustodial interview as is typical in IRS CI investigations, if a witness declines to be interviewed after receiving the modified Miranda warnings, that witness’ “silence” thereafter cannot be used against him to permit an inference of guilt.  This is true whether the silence is after specifically invoking the Fifth Amendment (or a lay equivalent thereof) or asking for the presence of his lawyer during the balance of the interview. 

But what if, in a noncustodial interview, the witness is not given the modified Miranda warnings and, under the facts, the interviewing agent’s failure to give the modified Miranda warnings is not such a violation that any ensuing prosecution attempt to use the witness’ affirmative answers to questions would be suppressed under the rules discussed above?  The question is whether the witness’ mere silence – simple failure or refusal to answer key questions, without affirmatively invoking the privilege – can be used at trial to permit an inference of guilt.  Such an inference might exist, for example, where the interviewing agent accuses the witness of tax evasion in a context where, generally, a nonguilty party would affirmatively deny the accusation.  But the witness simply says nothing and, perhaps, acts nervously or, dare I say, guiltily.  Can this circumstance permit the prosecutor to get those facts before the jury and then argue that the then defendant’s failure to respond is some evidence of his guilt which, when added to the other evidence at trial, proves his guilt beyond a reasonable doubt?  Perhaps another way to ask the question, is silence in this context the equivalent of invoking the witness’ Fifth Amendment privilege, so that the silence cannot be used? 

The Supreme Court has answered that question in a recent case involving questioning by state agents without Miranda warnings and subsequent state prosecution.  In Salinas v. Texas, ___ U.S. ___, 2013 U.S. LEXIS 4697 (2013), the Court held that silence was not the equivalent of specifically invoking the Fifth Amendment privilege and therefore the silence could be used in the milieu of facts as an inference of guilt.  The Court distinguished the case at trial where the prosecution is not permitted to call the defendant to the stand and force the defendant to specifically invoke the privilege before the jury.  In this case, the defendant has an unqualified right not to speak, and any comment on his exercise of the right would be inappropriate.  An interview is not the same circumstance as a trial where forcing the defendant to specifically exercise the privilege before the jury might be prejudicial.  Furthermore, it is not like a custodial or other setting in which the facts would suggest that the interview is under coercion.  The Supreme Court authority is that the interview is not coercive where it is noncustodial and the witness is free to leave at any time.  Where those conditions are not present, the witness must affirmatively do something that indicates he is exercising his Fifth Amendment privilege; mere silence is not enough. 

Of course, this is not a likely setting in a CI agent interview of the target of a tax crime investigation.  The CI agents are trained at the inception of the interview – almost always noncustodial – to give the modified Miranda warnings express advising the witness that he or she can invoke the privilege and can request the presence of the attorney.