SINCE WE HAVE THE SAME RULE ON THE MIRANDA RIGHTS WITH THE USA, IT IS WORTHY TO READ THIS AMERICAL ARTICLE WHICH REFERS TO A NEW US SC CASE ON "NON-CUSTODIAL QUESTIONING VIS-A-VIS 5TH AMENDMENT RIGHTS". THE RIGHT MUST BE EXPRESSLY INVOKED, THE US SC HELD.
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When faced with questions from a government investigator, a person’s silence
can now be used in a criminal trial against the person who was questioned and
declined to provide an answer. This is a major change regarding how the Fifth
Amendment’s right against self-incrimination is applied. This change stems from
a recent U.S. Supreme Court decision, Salinas v. Texas, 133 S. Ct. 2174,
2013 U.S. LEXIS 4697 (June 17, 2013), that upheld a murder conviction.
In Salinas v. Texas, the Supreme Court specifically held that witnesses
must affirmatively invoke their Fifth Amendment right (rather than simply
remaining silent) when they are participating in a non-custodial interview
with law enforcement. The decision is expected to have significant
implications for corporations and corporate executives facing government
inquiries and investigations.
can now be used in a criminal trial against the person who was questioned and
declined to provide an answer. This is a major change regarding how the Fifth
Amendment’s right against self-incrimination is applied. This change stems from
a recent U.S. Supreme Court decision, Salinas v. Texas, 133 S. Ct. 2174,
2013 U.S. LEXIS 4697 (June 17, 2013), that upheld a murder conviction.
In Salinas v. Texas, the Supreme Court specifically held that witnesses
must affirmatively invoke their Fifth Amendment right (rather than simply
remaining silent) when they are participating in a non-custodial interview
with law enforcement. The decision is expected to have significant
implications for corporations and corporate executives facing government
inquiries and investigations.
The defendant in Salinas submitted to a police interview and answered a number of
seemingly innocuous questions during the course of an almost one-hour interview.
Near the end of the interview, police asked the not-yet-defendant if his shotgun would
match the shells recovered at the scene of the murder. The defendant did not answer
this question, but looked down at the floor, shuffled his feet, bit his bottom lip, clinched
his hands in his lap, and began to tighten up. After this question, he was asked additional
questions, which he also answered. Essentially, he answered all but one question, to
which he remained silent.
seemingly innocuous questions during the course of an almost one-hour interview.
Near the end of the interview, police asked the not-yet-defendant if his shotgun would
match the shells recovered at the scene of the murder. The defendant did not answer
this question, but looked down at the floor, shuffled his feet, bit his bottom lip, clinched
his hands in his lap, and began to tighten up. After this question, he was asked additional
questions, which he also answered. Essentially, he answered all but one question, to
which he remained silent.
At trial, over objections, the prosecutor was permitted to comment in closing argument on
the defendant’s silence and was specifically permitted to argue that the defendant’s
“selective transitory silence” demonstrated his guilt because an innocent person would
have responded to the question. The jury convicted defendant, and the Court sentenced
the defendant to 20 years in prison.
the defendant’s silence and was specifically permitted to argue that the defendant’s
“selective transitory silence” demonstrated his guilt because an innocent person would
have responded to the question. The jury convicted defendant, and the Court sentenced
the defendant to 20 years in prison.
The Supreme Court upheld the conviction, noting the general rule that the privilege against
self-incrimination must be expressly invoked. The Supreme Court found that the two
recognized exceptions to this general rule did not apply in the Salinas case. The first
exception, enunciated in Griffin v. California, 380 U.S. 609 (1996), is that a criminal
defendant need not take the stand to assert his privilege against self-incrimination at
this own trial. The second exception, found in Miranda v. Arizona, 384 U.S. 436 (1996),
is that a witness’s failure to invoke the privilege will not constitute waiver of the privilege
the defendant is in an involuntary custodial interrogation.
The Salinas Court failed to extend Miranda and the protections afforded in a custodial
self-incrimination must be expressly invoked. The Supreme Court found that the two
recognized exceptions to this general rule did not apply in the Salinas case. The first
exception, enunciated in Griffin v. California, 380 U.S. 609 (1996), is that a criminal
defendant need not take the stand to assert his privilege against self-incrimination at
this own trial. The second exception, found in Miranda v. Arizona, 384 U.S. 436 (1996),
is that a witness’s failure to invoke the privilege will not constitute waiver of the privilege
the defendant is in an involuntary custodial interrogation.
The Salinas Court failed to extend Miranda and the protections afforded in a custodial
interrogation setting to the non-custodial setting in this case, and emphasized the voluntary
nature of the Salinas interview with law enforcement. The Court reasoned that the defendant
in Salinas, unlike in Miranda, was not facing coercion and, therefore, the same protections
need not be afforded.
nature of the Salinas interview with law enforcement. The Court reasoned that the defendant
in Salinas, unlike in Miranda, was not facing coercion and, therefore, the same protections
need not be afforded.
So, what does a murder conviction have to do with your company?
Companies — and their officers, executives, directors and employees — may often find
themselves being asked questions in non-custodial settings. This is particularly true in heavily
regulated industries such as health care, where federal regulators and government auditors
often make inquiries without taking someone into custody. Companies also often respond
to government requests for documents or other information and, in doing so, refrain from making
certain statements. Law enforcement officers also may appear unannounced to execute a search
warrant and interview individuals present. Lastly, law enforcement officers may call a company’s
employees to gather information as part of an ongoing investigation. Each of these contacts
arguably falls under the non-custodial questioning fact pattern of Salinas and thus, if the privilege
against self-incrimination is not expressly invoked, it may be lost.
Now more than ever, companies and their employees need to be thoughtful about responding to
government inquiries. Employees should understand their right not to submit to voluntary interviews
outside the presence of counsel, and further know that, contrary to common belief, simply remaining
silent may not be enough. The safest course is to affirmatively invoke the Fifth Amendment if you do
not wish to answer a question; failure to specifically do so may result in your silence being used
against you.
government inquiries. Employees should understand their right not to submit to voluntary interviews
outside the presence of counsel, and further know that, contrary to common belief, simply remaining
silent may not be enough. The safest course is to affirmatively invoke the Fifth Amendment if you do
not wish to answer a question; failure to specifically do so may result in your silence being used
against you.
Companies must educate and re-educate their work force on these issues to evade waiver of one
of the most fundamental protections afforded in the U.S. Constitution.
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