Chicago partner Dan Collins was quoted in an Inside Counsel article, titled, “A New Outlook on Fifth Amendment Rights.”  The article discusses a 1992 criminal case in which a man named Genovevo Salinas was questioned by Houston police regarding the shooting of two brothers.  Salinas was charged with the murders in 1993 but had since left the country.  It wasn’t until 2007 that police found Salinas living in Houston under an assumed name.  He was then arrested for the double murder. 

Salinas’ prosecutors told the jury that Salinas had answered investigators’ questions freely until he was asked whether the shotgun he had voluntarily handed over to police for ballistics testing would match shells police had recovered at the murder scene.  At that point, Salinas went silent.  Prosecutors believed that an “innocent person” would not have responded like that, and instead he would have denied his involvement.

White-collar criminal lawyers say the U.S. Supreme Court case that arose out of the initial questioning of Salinas raises Fifth Amendment issues applicable to corporate investigations.

There are often misconceptions regarding the Fifth Amendment.  The notion out there is that if you refuse to answer questions from any kind of federal, local or state agent that your silence can’t be used against you.  The Salinas case proves that theory wrong.

Salinas would have had to “expressly” invoke his Fifth Amendment Right against self-incrimination during the interview in order for the privilege to apply in his case.  Instead, he said nothing.  This case is a reminder that employees should receive appropriate training on how to handle such questionings.

“A corporation can never instruct an employee not to talk to law enforcement.  But a corporation can let employees know that they have choices, and that those choices include speaking with law enforcement or not speaking with law enforcement,” Dan said.

He continued, “In light of Salinas, advice given to employees should emphasize the fact that if they choose not to talk, they should affirmatively invoke their right to remain silent as opposed to simply staying silent in the face of questions.”

Read the full article.