(Note to Civil Attorneys - Read the last sentence of this article first!)

The news headlines read: "WORLDCOM EXEC'S TO TAKE THE FIFTH!"

We all know the mantra:

So you have advised your client to remain silent. What is the next sentence in the litany?

Well here's the rub. If your client does remain silent anything he doesn't say can also be used against him!

Many civil lawyers have faced the situation where a friend or business client makes a frantic call.

"The FBI just called my office. They want to interview me in an hour."

The client then tells the attorney that he has nothing to hide and has done nothing wrong. The correct response from the attorney is "Don't talk".   But as you give that sage advisement you should be aware that such advice comes with an unexpected price.

In Doyle v. Ohio the United States Supreme Court held "that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." (Doyle v. Ohio, 426 U.S. 610, 619 (U.S.Ohio, Jun 17, 1976) Id. at 619, 96 S.Ct. 2240. The theory underlying Doyle is that while Miranda warnings contain no express assurance that silence will carry no penalty, "such assurance is implicit to any person who receives the warnings." Id. at 618, 96 S.Ct. 2240.

The white collar client who calls you is not in custody. He is not under arrest. Unlike the Worldcom executive he is not compelled to be present by a subpoena. This means that Miranda does not apply! It also means that Doyle does not apply.

In Jenkins v. Anderson, 447 U.S. 231, 238-9 (1980), the Supreme Court held that due process is not violated by the use of a defendants' silence before he was arrested.

In Fletcher v. Weir, 455 U.S. 603, 607 (1982), the Supreme Court went even further stating that even after the client was arrested but before Miranda warnings were given the silence of a defendant could be used against him. What this means is that in situations where a person would normally be expected to talk the failure to talk might have some meaning. Here is a dramatic example.

In U.S. v. Thompson, 82 F.3d 849 (9th Cir.(Alaska), Apr 29, 1996) the defendant shot a man who appeared to be an intruder in his apartment. When police arrived at Thompson's apartment after the shooting, they questioned him at length. He answered most questions, but refused to answer a few.

At trial, the detective who interviewed Thompson testified that in response to three questions, Thompson told him he was "scared and wanted to talk to a lawyer." The detective also testified that he was "kind of at a loss at that response" because "[f]rom my observations at the apartment, I assumed that he had possibly shot somebody that broke into his apartment, and normally under those circumstances, people I talk with are more than eager to tell me what happened."

The extent to which pre-arrest/pre-Miranda silence can be used is not a completely settled question. The Supreme Court decisions cited in this article address the situation where a defendant actually testifies. In Thompson and other cases throughout the country the debate rages with respect to the use of silence when the defendant does not testify.

The Supreme Court cases involve the use of a defendant's earlier silence to impeach him. In other words, the willingness to provide an explanation for conduct while on the witness stand was contrasted with the failure to speak early in the process.

The courts are split on question of whether silence be used as part of the prosecution's initial case against the defendant? In other words, if the defendant doesn't testify is his silence by itself some evidence of guilt?

This issue was discussed by the Ninth Circuit in Thompson.

"Our court has not addressed the issue of use of pre-arrest, pre-Miranda silence as substantive evidence of guilt. See United States v. Calise, 996 F.2d 1019, 1022 (9th Cir.1993) (not reaching the issue because court gave curative instruction telling jury not to infer guilt from pre-arrest silence), cert. denied, 510 U.S. 1078, 114 S.Ct. 895, 127 L.Ed.2d 88 (1994)." (Thompson at 885)

The opinion in United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981) contains the assumption that silence cannot be used except for impeachment. In United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir.1991) the court found that it could be used. The same position was taken by the Fifth Circuit in United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996).

In United States v. Harrold, 796 F.2d 1275, 1278-79 (10th Cir.1986) pre-Miranda silence in meeting with IRS officers was admissible as evidence of guilt and yet the same circuit in United States v. Sasser, 974 F.2d 1544, 1558-59 (10th Cir.1992) found that evidence of prearrest failure to comply with subpoena, compliance with which may have compelled defendant to incriminate himself was inadmissible under the Fifth Amendment.

Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances from which that fact naturally would have been asserted.

Jenkins v. Anderson, 447 U.S. 231 (U.S.Mich., Jun 10, 1980) allowed state courts to formulate their own rules on this subject.

What does this mean to the civil attorney? In White Collar cases unlike most criminal cases, the first contacts by law enforcement with your clients will be in a non-arrest setting. You should still instruct your clients' to remain silent but be aware that the manner by which this decision to remain silent is communicated and the reasoning behind the decision may all be admissible at a later time.

[Are there exceptions to the "don't talk" rule ? Of course. When the client is clearly, 100%, absolutely just a witness or a victim. In most cases this short notice request for an interview is a sign that the investigator thinks your client may be a suspect. Friendly witnesses are given time to prepare so that the interview can be more productive. Suspects are jammed up so that they can't prepare their alibi and defense.]

A civil attorney who initially handles the matter and then refers to a specialist may find himself a witness at a later trial - explaining to a jury why the client who may have wanted to meet with law enforcement, chose not to!

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