California Supreme Court: Prosecutors May Use The Silence Of A Defendant As Proof Of Guilt

smdj_article_1776425128461_1The 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

70 thoughts on “California Supreme Court: Prosecutors May Use The Silence Of A Defendant As Proof Of Guilt”

  1. Perhaps Mr. Tom was in a state of shock from the accident when he was detained by the police and thus temporarily mentally incapacitated and incapable of lucid thought.

    What about the rest of our inalienable rights?

    Does a person need to recite a magical incantation (depending on which predation of the government a person seeks to shield themselves from) at exactly the right moment in order for their rights to be respected by the police/courts/DA?

    What exactly does inalienable mean?

    1. Personanongrata – I think it is a bad decision and if it moves into federal court who knows what will happen. It is the Ninth Circuit it is going to.

  2. Insofar as I can reckon, we pitiful laymen actually are entertaining granting the license to change reality to these people who specialize in argument and rhetoric.

    It feels as common sense that whatever you might imagine – of a person who has said nothing – is not in anyway “evidence” of anything.

    Notice the dance… the dancers… those who compose the music… and who is in the “band.”

    This is what happens when the common folk of the nation simply let technocrats make decisions for them…

  3. The demagogues failed to show “in law” where one is responsible to answer any question posed by police or where one is required “in law” to inquire about the status of people in their vicinity that may be injured or in discomfort.

    More asinine and corrupt “decisions” from narcissists in black robes who think they are the high priests of reason and truth, but rather lies and self serving deceit.

    Pigs are their willing henchmen, death is their trade, and without them this corruption would be meaningless and utterly irrelevant.

    Pigs are the means of ALL corruption by the state.

    ALL pigs, 100%, are corrupt, oath breaking, career criminals who protect their political class masters and selectively “enforce” the “laws” on the peasants and not their buddies and members of the political class whom also protect the pigs from the law as well.

    Amerika is great, isn’t it?!

  4. Just Us Homes:
    SCOTUS give more rights not to corporations, but to the State.
    I give a damn about corporations compared to the govt actors that have a license to kill.

  5. Great thread folks! Note the civility and note who was not here. Just sayn’.

  6. My first reaction to this story was: and I am sure that the police told the truth, the whole truth and nothing but the truth!

    SCOTUS gives more and more rights to corporations and continues to strip humans of every single right the founders gave them except of course the unbridled “right” to arm themselves and kill their fellow humans. All Hail the Suoreme Corproate Court!

    1. Justice Holmes – this was the California (very liberal) Supreme Court stripping the rights away, not SCOTUS.

  7. Posting for a few reasons. 1) As a native Californian, now displaced in DC for almost 20 years, all I can say is that my home state is not the same place it was when I left it. I blame myself. 2) If anyone other than Samuel “That’s not true” Alito had written the SCOTUS majority opinion, it likely would have been an outrageous slap in the face of the American public. Instead it’s a laughable, but all-too real, insult to the Constitution, as per his typical nonsense. 3) I’m feeling a little off with everyone saying how civil it’s been because “certain people” have not posted. I didn’t want to be among those “certain people,” so thought I’d at least say something! I am glad I’m not the only one appalled by this decision, both in the SC and in CA. Surprise that Judge Liu happened to be the voice of reason! Ugh…

  8. If you walk past an officer in a convenient store, don’t forget to say that you invoke your fifth amendment privilege as you pass by, or else you are guilty of, well, everything! “your silence means that you are an accomplice of the underwear bomber! You are under arrest! Put down the hot dog!”

  9. This is a terrible decision. Silence does not support an inference of guilt as a matter of fundamental logic. The effect of this decision is to permit jurors to reach conclusions grounded in nothing more than speculation. We might as well reintroduce trial by ordeal, or merely flip a coin. Lawyers must now advise clients to specifically invoke the Fifth Amendment immediately upon their initial contact with any law enforcement officer.

  10. John, Maybe laminated cards like cops use to use to remember the Miranda warning.

  11. This is not a bad decision! In fact, its not really a decision but rather confirmation that we are:

    A) not living under the constitutional system we are supposed to but rather by a defacto, unconstitutional system.

    B) used to a government that was incorporated (as in “corporation”) in 1871 (see The Columbia Act of 1871) of which the states are sub-corporations. This puts us under the Uniform Commericial Code.

    C) still able to claim constitutional law. Since it is the supreme law of the land, claim it! When they arrest you, claim your rights. I know its not as easy as if you just had them, but, isn’t it worth it?

  12. I suggest everyone include among their legal documents a notarized declaration that they understand they have the constitutional right to remain silent. Then, if this situation were to ever come up they will be able to prove their silence was nothing more than a constitutional right.

    Would this stand up to legal scrutiny?

Comments are closed.