Silence in NonCustodial Interviews and the Fifth Amendment

Silence in NonCustodial Interviews and the Fifth Amendment

I just read the Seventh Circuit's opinion in United States v. Phillips, [enhanced version available to subscribers], ___ F.3d ___, 2014 U.S. App. Lexis 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) [enhanced version available to subscribers]. 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, [enhanced version available to subscribers], 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, [enhanced version available to subscribers], 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.

View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.

For additional insight, explore Tax Crimes, authored by Jack Townsend and available at the LexisNexis® Store


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