July 02, 2013

In this article, Jenner & Block Partner Reid J. Schar and Associates Coral A. Negron and Kristin L. Rakowski  examine the implications of a recent U.S. Supreme Court decision on corporations undergoing a government investigation.  The authors explain that Salinas v. Texas held that if an individual does not “expressly” invoke the Fifth Amendment right against self-incrimination during a voluntary police interview, a prosecutor can use that silence as evidence of guilt.  Although Salinas v. Texas arose during a murder investigation, the authors note that the decision can apply to companies or employees who agree to be interviewed.  They conclude that “if an officer or employee begins to answer questions, and thereafter refuses to answer particular questions without either requesting the assistance of an attorney or expressly invoking Fifth Amendment rights, that refusal may be deemed admissible against both the individual and the company. As a result, in-house counsel may wish to address this scenario and the consequences that could flow from it with relevant officers and employees.”