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
I am not sure what to think in a sense. because when you read the original text of Miranda v. Arizona, it says:
“If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present.”
so that gives me the impression that the defendant has to tell the arresting officer that he wishes to remain silent. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=384&invol=436)
In Salinas v. Texas, Alito explained: “petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question.”
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=12-246)
so in an indirect sense the decisions are consistent. except one says if he indicates. one says he has to indicate. but now the supreme court will have to decide if is silence a legitimate method of indicating/asserting your right to remain silent.
davidowen – I would think that silence would indicate silence. The Miranda decision does not require a specific method of indication. However, I don’t live in CA.
I’ve lurked here off and on, mainly off for years.
I always look to Professor Turley’s civil, sane, rational, justified opinions, but his forum has always been a horrendous pit of name calling, ignorance masked by arrogance, and stupidity. Often the worse are, as usual, the insane social justice warriors.
ymmv
> 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.
With the various videos going around of never speak to the police, along with all the other abuses of the police, I’ve been thinking for sometime that were I a witness to some crime, I might not tell the police. Or I might first seek out a lawyer.
Again, all day this conversation has been civil. Take a look @ the toxic threads today and compare it to this one. See who is NOT here, spewing hate. ‘Nuff said.
PCS, there was one unrepeated report that certain tech analysts said the e-mails could not and would never be recovered.
Boehner and the republican Congress deliberately did not preclude Lerner, et. al., from destroying evidence by immediately securing any and all evidence years ago when the first aspect of this crime was discovered. Many in Congress claim to be the best former prosecutors who have the experience to know that the crime scene and evidence have to be inviolably secured immediately without fail. Fail-safe is what the Congressional investigators failed to do with obvious deliberation.
The Founders told us that honest, reverent and moral men would be necessary for the survival of this republic. Can you say Bill Clinton? Juanita Broaddrick did after she was allegedly raped. As was stated earlier, the whole Kennedy lie should have never been.
I recently served on a jury in an illegal gun possession case. The prosecutor actually argued that because the officers did not take fingerprints from the gun (or provide any other evidence the gun was in the defendant’s possession other than their testimony) that the jury should see that as evidence of GUILT, We were to take it that because the police were so sure he was the guilty party, there was no need for evidence! My whole experience on jury duty was eye-opening, my previous idea of the flaws in the system were greatly underestimated.
In this case, as sad as the accident was, there doesn’t seem to be any evidence of negligence here. Even if he was an unsympathetic selfish jerk, that is not the same as negligence. I can’t help but wonder if the defendant here was white if they would have tried this ridiculous (and even more ridiculously upheld) prosecution.
IRS – LOIS LERNER”S silence is proof of her guilt.
Lois Lerner took the 5th and destroyed her hard drive,
as the White House coordinated the destruction of multiple other connected hard drives, main frames, memory and back-up systems in the IRS, re-election campaign and other associated sites.
Obama is the President Nixon WANTED to be.
John – the IRS came up with two very different stories about the missing emails in court last week. The judge told them to get their act together and he was going to send a special investigator to deal with the issue.
Rio Cox,
That is my experience here in San Diego county. I’m also retired Navy and I can always tell the military veterans among the cops.
If spousal or clergy conversations are protected, then why aren’t the conversations we have with ourselves also protected? If lie detectors aren’t admissible in court then how is mind-reading any more reliable?
+1 Rick.
I just recently watched Captain America The Winter Soldier. It’s a fantastic superhero movie, perhaps the best ever. It’s also a very good commentary on the times we live in today. One line sticks out – “The people have to give up their freedom willingly… in order for them to get the freedom they deserve”.
For anyone that is concerned about the freedoms we are willingly giving up for the false idea of safety, this movie gets it right about the direction we’re traveling as a nation.
How much more evidence do people need the Continuity of Government that was implemented after 9/11 is in full force and effect?
More rights have been effectively nullified in the last 10 years than the previous 200 years.
The opinions justifying this stuff , when read, are jibberish. They don’t even make logical sense.
The current gov’t is a simulacrum of the Old Republic.
Paul: That’s probably a good way to collect an obstruction charge and loose a phone at the same time!
But at least my beating will be on video.
rio cox – I keep my cell phone in my breast pocket. So I can turn it on and get the sound. I also have a smart watch, so I can get 5 minutes of audio that will transfer to the phone.
Paul- I’m retired Navy and live in Beaufort SC. It’s a military town with three bases. Most cops here were military (Marines mostly) or grew up with military. You might think the opposite would be true but, the cops here are pretty mature and professional. Believe me I’ve seen them take some sh## and stay true to their oath.
@ J. Brian Harris: You posts are way too long. Unless your goal is to have no one really read them. Plus it’s confusing. How does cosmology (or neurology) relate to our system of laws?
“In the context of “big bang cosmology, after the manner in which the microwave background radiation found by Penzias and Wilson, of Bell Labs, is deemed as though the echo of “the big bang,” in my view, the adversarial system is as though the echo of what came before “the big bang.”
The run-on sentence above does not make any sense whatsoever.
As a buck rabbit with a Cassandra complex who is also a licensed astronaut and pornstar, I shall herewith, therewith, heretofore and theretofore state: Engineers should probably not practice law and lawyers should probably not drive trains. The skill sets and knowledge bases are quite different and not very transferable.
I know this having recently read Watership Down by Richard Adams, Scribner, 2005 edition (orig. 1972), ISBN-13: 9780743277709.
It has been a civil morning on this thread. That comports w/ prior threads w/ similar legal subject matter. Kudos.
American culture is filled with people who view incarceration as a good thing. PrisonWorldAkaAmerica There is such a push to prosecute nearly everything. Having said that… I don’t think any evidence should be off the table. Or any defense.
As a citizen dealing with any future law enforcement interaction, I have only two things to fear: anything I say, and anything I don’t say.
This sums up with any interaction with the law and law enforcement.
[youtube http://www.youtube.com/watch?v=4F4qzPbcFiA&w=560&h=315%5D
What ever happened to …
There is this horrid “thing” that has been named,or, perhaps,mis-named, “science.” To me, as a research scientist working in the field of bioengineering under the Wisconsin State Licensed guise of professional engineering, science may be a useful name for the process of accurate and verifiable thinking and understanding.
In accord with the above, I shall herewith state what I find to be a plausible candidate for an ultimate law of actual existence. To wit, “Whatever actually happens, as it actually happens, is, without actual exception or any possibility of actual exception, absolutely and perfectly both completely necessary and completely sufficient; this being the simple consequence of the absolute fact that nothing else ever actually happens.”
In the absence of any other method or means of evaluating the biological validity of adversarial law and jurisprudence, what the aforementioned law of existence produces is as-though random and chaotic forms of hypothesis-testing, those forms of hypothesis-testing being made manifest in the California Supreme Court decision that whatever a person does not say can and (presumably?) will be incriminating.
The plausibly likely consequence of this decision is, to me, remarkable. With the sole exception of those who claim absolutely total sovereignty to establish what the law is and what the law is not, everyone who has not yet spoken at least several infinitudes of words is inherently guilty by merely being alive. That is as dramatic a variation on the religious theme of allegedly original “sin” as I now recall ever coming upon.
The commonplace belief, which I experience as critically essential to the adversarial form and function of the rule of law, to the effect that a living person who actually did something deemed objectionable by law could actually have done something else, is, in terms of contemporary biological science, untenable.
This takes me into the realm of how human people make choices. That takes me into workng to understand how living neural networks actually behave. That takes me into recognizing that the Anglo-American Adversarial System of Law and Jurisprudence is grounded in an essential, albeit false and scientifically falsified, implicit premise.
There is a little predicament in the realm of formal logic in the larger realm of philosophy of science; a conclusion based on an absolutely essential, absolutely false, implicit premise, may be a false conclusion.
What I observe to be happening is the false implicit premise without which there can be no adversarial system of law, is proclaiming its falsehood to all who can hear its cries of abuse and horror.
That false implicit premise is of the form that, had someone who actually did something actually done something else, it would actually have been better, and that the person who actually did something actually could have actually done something else.
Perhaps looking up “Measurement Problem” as an aspect of theoretical physics,on Wikipedia might somewhat enlighten those among us who are oblivious to its relevance to the honest and truthful rule of law.
That which a person could (and should?) have actually done differently was never done, and the consequences of having done something differently than it was actually done cannot be measured in any way or manner whatsoever.
In the context of “big bang cosmology, after the manner in which the microwave background radiation found by Penzias and Wilson, of Bell Labs, is deemed as though the echo of “the big bang,” in my view, the adversarial system is as though the echo of what came before “the big bang.
The adversarial system is proof positive of murderous ignorance of human neurobiology.
Ignorance, however, merely indicates that there may be learning experiences that have yet to happen
leej, Good analysis. I am an introvert and often am silent. There are endless reasons why a person would be silent. Stutterers are often silent. Infinite number of reasons.