The California Supreme Court has handed down a major 4-3 decision in a vehicular manslaughter case that further erodes the rights of citizens to remain silent after being placed into custody. As are all familiar with the Miranda warning that “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” However, as we recently discussed, the Supreme Court by plurality decision that effectively allowed pre-Miranda silence to be used against a criminal defendant in Salinas v. Texas 570 U.S. ___, ___ (2013) (plur. opn. of Alito, J.). Now, the California Supreme Court in People v. Tom, has handed down the first major application of Salinas and ruled that the prosecution can use the silence of a defendant (Richard Tom, left) as evidence of guilt. In California, it is not simply what you say but what you do not say that can be used against you. It is not clear if they are going to change the warning to let people know that if they do not speak, their silence can be used as incriminating.

The case began with a car accident in Redwood City, south of San Francisco, where Richard Tom broadsided a car driven by Loraine Wong — killing her 8-year old-daughter and seriously injuring her 10-year-old daughter. Tom was convicted of gross vehicular manslaughter but he was acquitted of driving while intoxicated. The conviction required the prosecutors to show that Tom was grossly negligent (or acting without regard to the safety or well-being of others). The prosecutor wanted something beyond the high speed to make her case so she focused on Tom’s silence. While he was not arrested until after going to the police station, he was found to have been in custody at the time of his speaking with officers.

The prosecutor elicited testimony Sergeant Alan Bailey over the objections of the defense as to Tom’s silence about the well-being of the accident victims. She asked “So, during any of this time [at the accident scene], the defendant ever ask you about the occupants of the other vehicle?” Sergeant Bailey said that he did not. Then, in her direct examination of Officer Josh Price, the prosecutor asked, “During those three hours [after the accident], did the defendant ever ask you about the condition of the occupants of the Nissan?” Again over objections, Price answered no. Finally, in her closing argument, the prosecutor told the jury “how [Tom] acted the night of the collision” showed “his consciousness of his own guilt.” She added that it was “particularly offensive, he never, ever asked, hey, how are the people in the other car doing? Not once. . . . Not once. Do you know how many officers that he had contact with that evening? Not a single one said that, hey, the defendant asked me how those people were doing. Why is that? Because he knew he had done a very, very, very bad thing, and he was scared. He was scared or — either that or too drunk to care. But he was scared. And he was obsessed with only one thing, that is, saving his own skin.”

A sharply divided court ruled that such testimony and arguments are now permissible. The U.S. Supreme Court held in Salinas that “[t]he privilege against self-incrimination is an exception to the general principle that the Government has the right to everyone‘s testimony” but that “a witness must assert the privilege to subsequently benefit from it.” In his dissent, Justice Goodwin Liu (who you may recall was blocked by the GOP from confirmation to the Ninth Circuit) insisted that the Salinas notably “declined to resolve whether the Fifth Amendment bars a prosecutor from using a defendant‘s noncustodial silence as evidence of guilt.” This is a custodial situation.

However, that distinction did not change the minds of the majority which relied on Justice Alito’s language in Salinas.

Although a suspect, before or after arrest, may choose to remain silent in reliance on the constitutional privilege, the suspect may also be silent “because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment.” [Salinas] To distinguish between those silences that are protected by the privilege from those that are not, it is the defendant‘s ― “burden . . . to make a timely assertion of the privilege.” (Ibid.) Here, as in most other contexts, the protections of the privilege hinge on whether the defendant clearly invoked the privilege—―”popular misconceptions notwithstanding. “(Ibid.)

Thus a person is expected to invoke Miranda before ever being told that he is under arrest. The court dismisses the lower court’s concern that the ruling would obviously give police an incentive to delay formally arresting individuals or informing them of their Miranda rights. The majority hold that “Where a defendant could have invoked his privilege against self-incrimination at any point—but failed to do so—the prosecution‘s use in its case-in-chief of the defendant‘s postarrest, pre-Miranda silence in the absence of interrogation cannot be deemed a ‘penalty . . . for exercising a constitutional privilege.'”

For civil libertarians it is the second shoe dropping from Salinas. While the Court found, belatedly, that Miranda is grounded in the Fifth Amendment (a decision by the late Chief Justice William Rehnquist in Dickerson v. United States, 530 U.S. 428 (2000)), this would substantially alter the effect of the rule as to the protection of a defendant’s silence and allow speculation as to the failure of a defendant to speak. Particularly after a serious accident, there are any number of reasons why a defendant might not ask normal questions, including disorientation or fear. Not only can that silence now be used against him, but he is expected to formally invoked Miranda when he might not be aware of the right or in a cognitive state to think of its application.

You can read the opinion here: People v. Tom

Kudos: Michael Blott