Silence in NonCustodial Interviews and the Fifth Amendment (3/28/14)

I just read the Seventh Circuit's  opinion in United States v. Phillips, ___ F.3d ___, 2014 U.S. App. 4898 (7th Cir. 2014), here, and a recent Champion article, Neal Davis and Dick DeGuerin, Silence is No Longer Golden: How Lawyers Must Now Advise Suspects in Light of Salinas v. Texas, 38 Champion 16 (2014) [I do not have a link to the article].  I thought it might be worth revisiting an issue I had discussed before in two blogs: Silence in Response to Questions Without Miranda Warning in NonCustodial Setting May Be Evidence of Guilt (Federal Tax Crimes Blog 6/18/13), here, discussing Salinas v. Texas, 570 U.S.    , 133 S. Ct. 2174 (2013), here, and Invocation of Fifth Amendment in Noncustodial Setting May Not Be Used In Prosecution's Case in Chief (Federal Tax Crimes Blog 9/5/13), here, discussing United States v. Okatan, 728 F.3d 111 (2d Cir. 2013), here, which in turn discusses a facet of Salinas.  A brief summary of the law as discussed in those cases and the blogs is that the prosecution may comment at trial upon a noncustodial witness' silence even if the witness was not "Mirandized. " (Readers will recall that Miranda warnings are required only in custodial or equivalent settings, but the IRS in criminal investigations gives modified Miranda warnings in noncustodial settings.)  Of course, such a comment would be improper if the silence were in a context that the witness invoked his or her Fifth Amendment (either expressly or inferentially in context, such as by asking to consult with an attorney).  Salinas held that the prosecutor could.  Okatan held that, if the witness had asked to consult with an attorney, he had effectively invoked his Fifth Amendment privilege and the prosecutor could not comment.

In Phillips, the prosecution elicited at trial from an IRS CI agent that that the testifying CI agent testified that, during the investigation, he had sent two other CI agents to serve a summons and they had served it on defendant.  The cryptic opinion does not state that those serving CI agents attempted to interview her when they served the summons.  Nevertheless, the defendant argued for the first time on appeal that the implication of the testimony as elicited at trial was that they had attempted to interview her and she had not cooperated.  There is no indication that, in fact, the CI agents had attempted to interview her, that they had or had not given Miranda or modified Miranda warnings or that she had refused to be interviewed (stayed silent).  The defendant was apparently arguing that the testimony as elicited inferred at least that they had attempted to interview her and that she had not cooperated.

As an issue raised for the first time on appeal, the Court applied the plain error standard of review.  The Court then rejected the argument cryptically:

Mrs. Phillips claims that the government's questioning of Agent Howard commented on her silence in violation of her Fifth Amendment right against self-incrimination. She argues that Agent Howard spoke of sending agents to "attempt" to interview her, which Mrs. Phillips claims subtly implied that she had refused to speak. She did not object to Howard's testimony or to the prosecutor's statement at closing, so we review only for plain error. United States v. Della Rose, 403 F.3d 891, 906 (7th Cir. 2005). Of course, a defendant has "a constitutional right to say nothing at all about the allegations." United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987).  But the government violated her right only if it "manifestly intended to refer to [her] silence, or ... [if] the remark was of such a character that the jury would naturally and necessarily take it to be a comment on [her] silence." United States v. Andreas, 216 F.3d 645, 674 (7th Cir. 2000) (citation and internal quotation mark omitted). 

In light of what happened at Mrs. Phillips' trial, her argument is unconvincing. The government's explanation for Agent Howard's testimony—to establish that the couple started withdrawing cash as soon as they became aware of the IRS investigation—is logical and is reflected in the government's closing argument. The government intended to, and did, point out suspicious conduct and timing, rather than comment on Mrs. Phillips' invocation of her right against self-incrimination. Nor would a jury be likely to view Agent Howard's testimony as commenting on her silence. Indeed, the evidence does not even tell us whether the agents actually spoke to Mrs. Phillips, and if they did, what she did or did not say. Nor did the record clearly suggest that she was silent. We therefore conclude that the government did not violate her right against self-incrimination.

Of course, the Supreme Court held in Salinas that the prosecution could comment on silence at a noncustodial interview where there had been no Miranda-type warnings and the witness did not invoke the Fifth Amendment privilege, directly or indirectly (other than by mere silence).  Salinas, it seems to me, would have required rejecting the defendant's argument.  But perhaps, as suggested by the final two quoted sentences, the facts were not sufficient to apply Salinas -- for example, even when a witness is not taken formally into custody (e.g., by arrest), the context might indicate sufficient coercion to be equivalent to custody.

After Salinas and Okatan were decided, I revised by working  draft of the Federal Tax Crimes book to have the following discussion (footnotes omitted):

(4) Silence During a Non-Mirandized 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.  Indeed, if the defendant invokes his Fifth or asks for a lawyer (the equivalent of invoking the Fifth), the Government cannot even use the fact that he invoked the Fifth or asked for a lawyer in its case in chief. 

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 or asking for a lawyer – 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, 570 U.S.    , 133 S. Ct. 2174 (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.  In a noncoercive interview even without any type of Miranda warning (either full or modified, but sufficient to advise of the Fifth Amendment privilege), 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.

Now, I would like to offer some quotes from the Davis & DeGuerin Champion Article, Silence is No Longer Golden: How Lawyers Must Now Advise Suspects in Light of Salinas v. Texas, 38 Champion 16 (2014).  The authors perhaps overstate their case, but not much and caution in this area is the better part of wisdom:  Footnotes are omitted:

Almost 70 years ago, Justice Robert Jackson made the following observation in Watts v. Indiana: "[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." But after the Supreme Court's recent decision in Salinas v. Texas, Justice Jackson's once-stalwart advice could be tantamount to malpractice if police question a suspect in a noncustodial context. Silence is no longer golden. 

Under the Supreme Court's Alice in Wonderland approach to the Self-Incrimination Clause, witnesses cannot exercise their right to remain silent in a noncustodial context unless they speak up. In a 5-4 decision,  Salinas held that a witness, whom police subject to noncustodial questioning without giving the Miranda warning, cannot rely on the Fifth Amendment unless he expressly invokes it. That is, if a witness remains silent in the face of such questioning, the prosecution can, at trial, introduce his silence as substantive evidence of his guilt. And further, the police do not have to inform the witness in advance of his right against self-incrimination. 

While it did not receive widespread media attention, Salinas has profoundly changed the law of self-incrimination. Imagine the myriad common scenarios in which Salinas might apply. For example, Salinas might apply when (1) a suspect receives a target letter from a prosecutor; (2) police or prosecutors contact a suspect to discuss a case; or (3) police question a suspect while conducting an investigation or serving a subpoena. Then think about the frightening prospect of a suspect who simply remains silent. At trial, the prosecution can argue that the defendant must be guilty because he remained silent instead of cooperating and speaking to police. Consider how this argument -- that pretrial silence shows the defendant's guilt -- muddles the jury charge that a nontestifying defendant's refusal to take the stand cannot be held against him. 

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4. The Impact of Salinas 

Salinas profoundly affects how police investigate cases, prosecutors try cases, and defense attorneys advise suspects. 

a. Police 

Salinas does not require police officers to give any warning -- Miranda or otherwise -- to witnesses they subject to noncustodial interrogation. Witnesses are expected to know they have a right against self-incrimination. And unless they expressly invoke this right, anything they say -- or do not say -- can be used against them. 

Perhaps most disturbing is the plurality's approval, in dicta, of police "accurately stating the law" to witnesses. Under this theory, there is nothing improper about police telling a suspect who is not in custody, "Joey, I want to ask you some questions. And if you don't answer my questions, then at your trial the prosecutor will be able to stand in front of the jury and tell them an innocent man would answer my questions. So I recommend you answer my questions." All but an expert in Fifth Amendment law would believe he had to answer the officer's questions. 

And this is just part of the reason the plurality opinion significantly undermines Miranda. Police are now encouraged to "question first, arrest later." They can conduct noncustodial questioning of a suspect -- even when probable cause exists to arrest him -- knowing that he will rarely assert the privilege and that anything else he does, whether he speaks or remains silent, can be used against him. Under Salinas, police can wield various investigative techniques against suspects. 

They can send a letter to the suspect and ask him to come in for questioning. They can call the suspect to ask him questions. Or they can ask the suspect questions ancillary to an investigation or while serving a subpoena. In any of these circumstances, or an array of others, the suspect's silence or his failure to respond can be held against him. 

* * * * 

b. Prosecutors 

The plurality opinion allows prosecutors to argue to jurors that the defendant's noncustodial silence can be held against him. After all, prosecutors will argue, an innocent person would talk. 

This argument can have a devastating collateral effect. Jurors may well experience cognitive dissonance trying to reconcile how a defendant's pretrial silence is evidence of his guilt but his refusal to testify at trial is not. Jurors will be inclined to interpret a defendant's noncustodial silence as evidence of guilt despite all the innocent reasons a suspect might remain silent. As a result, defendants will feel extra pressure to take the stand to offer an explanation for their silence. 

* * * * 

c. Defense Attorneys 

It is no longer sufficient for defense attorneys to tell suspects to keep their mouths shut or ignore messages and letters from the police. The defense must tell suspects to expressly invoke their right against self-incrimination if governmental agents try to question them. Counsel should explain to the suspect that, even when the police or a prosecutor tells the suspect his silence can be used against him, he can -- and should -- invoke his right against self-incrimination. Some role-playing, with the lawyer playing an officer, would help condition the suspect to feel comfortable expressly invoking the Fifth Amendment. 

Since an ounce of prevention is worth a pound of cure, the lawyer should give the suspect a letter explaining that he has been advised of his constitutional rights, including his right against self-incrimination, and he wishes to assert them. The letter should be on the lawyer's letterhead, addressed to government agents, and ask them to allow the suspect to contact his lawyer. The suspect should sign the letter. See the example below.

 * * * * 

8. Excluding Silence on Evidentiary Grounds 

A suspect's silence in response to noncustodial police questioning, while constitutionally admissible, can still be excluded under the Rules of Evidence. After all, the Supreme Court in Salinas described silence, as "insolubly ambiguous." How relevant can "insolubly ambiguous" testimony be? 

Indeed, state courts have generally found noncustodial silence inadmissible on evidentiary grounds because silence is too ambiguous to prove guilt, and its probative value would be outweighed by the prejudice to the defendant. In Ex parte Marek, for example, the Alabama Supreme Court abolished the evidentiary "tacit admission rule" in criminal cases because the "underlying premise, that an innocent person always objects when confronted with a baseless accusation, is inappropriately simple, because it does not account for the manifold motivations that an accused may have when, confronted with an accusation, he chooses to remain silent. 39 The Marek court explained: "Confronted with an accusation of a crime, the accused might well remain silent because he is angry, or frightened, or because he thinks he has the right to remain silent that the mass media have so well publicized." 

9. Explaining Noncustodial Silence 

If a defendant's noncustodial silence will be admitted at trial, defense attorneys should raise the issue at voir dire, just as they raise the silence of a defendant who will not testify. Defense attorneys should ask the venire: "Why would an innocent suspect, who is free to leave, remain silent when police question him?" Then counsel should explain why he might: anger, fear, intimidation, embarrassment, the suspect thinks he has the right to remain silent and should not talk, he wants to speak with an attorney first, he has language problems, he does not understand the question, he does not know the answer to the question, he might get someone else in trouble, and so on. Undoubtedly, some members of the venire will give the defense attorney the answer the defense wants. But the defense can then identify other members of the venire who agree or disagree, and why. This may lead to a valid challenge for cause depending on the jurisdiction. 

In one Texas case, the lawyer -- before Salinas was decided -- had advised his client not to speak to the police. When police called the client and tried to interview him about an alleged assault, he refused to say anything -- but he never expressly invoked his right against self-incrimination. 

The case went to trial after Salinas. The prosecutor sought to introduce the client's noncustodial silence as substantive evidence of his guilt. At the pretrial conference, the trial court was inclined to admit this silence. 

The lawyer decided he needed to address the issue in jury selection. He asked the venire why someone under investigation would hire a lawyer, whether it is a good idea to follow a lawyer's advice, and why a lawyer would advise an innocent suspect not to say anything to the police. The silence was admitted and, after a week-long trial, the jury acquitted in less than an hour.