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
All I know is every time I even see a cop from this point on it’s “HANDS UP, DON’T SHOOT, I WISH TO REMAIN SILENT!
Rio Cox – turn your phone to record, before you say anything and raising your hands.
Squeeky, An excited utterance is an exception to the hearsay rule. If a child is raped by a man, runs out from the house crying and yells to a person passing by, “That man in the house just hurt me,” that statement is admissible. The person who heard that excited utterance can testify to what the child said.
Appalling. Most would not know they had to invoke as soon as the police talk to them. That the prosecutor ued his silence to say this or that may have been in his mind is ridiculous. It turns juries into mind readers
The prosecutor snarkily injected or “too drunk to care” though he was quitted of the intoxication offense. That should not have been permitted.
To my mind the only way she could have (or should have been able to) inject the ‘what was he thinking by remaining silent’ would be to list every possibility.
Should go to SCOTUS but with this political and politicized court they may well uphold it.
Sad day for the US and the Bill of Rights.
So the California Supremes are following the DC Supremes into libertarianism of the type 7x variety (the lib gene has many branches).
IIRC the lack of an excited utterance can be introduced as evidence of intent or guilt. Example, wife is shot, police come to house, husband is calm, cool, and collected. That may be what the court is trying to protect, the right to introduce demeanor evidence, but those fine lines are going to be blurred.
Squeeky Fromm
Girl Reporter
The prosecutor’s insinuations in this case fail Logic 101. Perhaps Tom already knew how the victims were. He was there, after all. He saw what happened. Silence can mean many things. This ruling is absurd.
“Al O’Heem
It is unfortunate that persons must invoke their rights instead of having them pertain at all times. Another trip to SCOTUS?”
Yes, I think that would be warranted. And it is too bad that we have to invoke inalienable rights to silence and protection from self incrimination. It may be time for the SC to be clear that we have those rights until we choose to give them up.
Threads on legal questions like this bring out the adults who discuss the pros and cons of the issue. Cultists from both sides don’t seem interested in these discussions. That’s why they’re almost always civil.
In my view, a view which is inescapably incomplete, there is a profound natural philosophy enigma in any system which is functionally purely self-referential in the sense of nested set of sets which contain themselves as members.
Please note that “nested sets of sets which contain themselves as members” is, on my part, a word sequence which is viciously self-referential in both form and function.
I observe, using the methods of system dynamics, that any closed system which is intrinsically and ineluctably adversarial will become adversarial, more than in any other way, to itself.
I recently read Sidney Powell’s book, Licensed to LIe: Exposing Corruption in the Department of Justice, Brown Books, Dallas TX, 2014.
As a licensed Wisconsin Professional Engineer having both professional (B.S.) and research (Ph.D.) degrees in the realm of bioengineering, I have put decades of intense research effort into unriddling what has long been, for me if for no one else, what I observe to be a profound philosophical predicament.
That predicament is centered on the observations made within the proper subset of biology labeled neurology, to the effect that socially normal people predominantly make decisions with their “unconscious” mind about half a second before the unconscious decision arrives in conscious awareness.
I happen to be one of the autism spectrum folks who never went through the “infant-child transition” (or, “the terrible twos”?), and who never developed an unconscious aspect of mind in the Freudian sense.
To borrow the first words from the back of the dust jacket of Powell’s book, “When the guardians of justice become the perpetrators of injustice…”
The neurobiology of adversarial law, whether adversarial in form or in function, relentlessly drives its adherents toward the perpetration of injustice, doing so because law as adversarial is invariably and absolutely injust.
The Adversarial System of Law and Jurisprudence has become a tragically corrupt and corrupting exercise of group psychosis, as demonstrated by this blog thread as in many other Turley blog threads.
The problem is not a people problem, it is a system/situational problem which is as dishonest and deceptive as I guess any system/situational problem can ever be.
There has already been some work showing that teenagers are unsure of their rights even after they are read to them. Now the next question is, if you invoke, will that be held against you?
It is unfortunate that persons must invoke their rights instead of having them pertain at all times. Another trip to SCOTUS?
Professor,
What occurs to me is the removal of protection by Miranda for those who may not have the intellectual capacity, and emotional control, to understand this virtual trip wire in this legal exception. There is such a nuance to this procedural exception that it appears to me to effectively cut the due process benefit of Miranda in half. I am guessing that of the number of people arrested, at least half are not likely recidivists who would through repetition of arrest could become a practical expert at knowing the legal nuances to prevent successful prosecution. If we don’t have protections that protect the weakest and less capable, we don’t have protections.
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.
So, if someone who fails to kill another person and later while in police custody asks how his victim was doing, does that mean he does not have a “consciousness of his own guilt?”
We do now have a strong civil libertarian contingent of commenters here. It is the libertarian blogger that has attracted us. Some Dem cultist here tried to argue that JT is not a libertarian!
I’m sorry, should say they are not their. More coffee on a Friday morning is called for I believe.
In fact, this might apply to witnesses. Since it is against the law in many states for you to lie to the police, it would be in the best interest of all witnesses to invoke before talking to the police.
“Now, at least in CA, you will have to invoke the moment you see the police.”
And yet they still try to say their here to help us. I doubt they see the conflict.
This pre-custodial thing has been a problem for a long time. Cops try to get you to confess or make incriminating statements while they have you in the car but before arrest and pre-Miranda warning. Now, at least in CA, you will have to invoke the moment you see the police.
Very bad decision.
It just keeps getting worse and worse. Another terrible decision that assumes police are benevolent and the rest of us are guilty until presumed innocent.
Mothers, tell your children to go to law school.
Not a pleasant example, but to make silence as evidence of guilt is making lack of evidence as evidence of guilt. Jesus was silent before his interrogators. He faced injustice. Innocent words can be twisted, taken out of context, skillfully edited, and falsified. Much harder to manufacture false ” evidence” if you say nothing. So those who would fit you up create a double-bind where they can’t lose and you can’t win.