The California Supreme Court recently issued a decision that has followed an unfortunate line of similar decisions which continue to corrode away our constitutional rights. The California Supreme Court, in the case of People v. Tom, has ruled that silence can be used against suspects.
The case stems from a 2007 case where Richard Tom collided with another vehicle while speeding, killing an 8-year-old girl and leaving her sister and mother injured. Tom was placed in the back of the police car, but not read his Miranda rights until later in the evening. During the trial, prosecutor Shin-Mee Chang repeatedly referenced Tom’s failure to inquire into the wellbeing of the victims following the collision and argued that his silence was “substantive evidence of guilt.”
“I’m not saying that he has to say sorry as an expression of his guilt or as some kind of confession but simply as an expression of his regret,” Chang told the jurors.
Tom was also charged with DUI. Immediately following the collision, Tom’s blood alcohol level measured 0.04 percent. Although prosecutors argued that Tom’s blood alcohol content was actually 0.98 percent at the time he drove, the jurors acquitted Tom of alcohol-related charges.
Tom was convicted of manslaughter and was sentenced to seven years in prison.
The California Court of Appeals held that Tom was under de facto arrest when he was placed in the back of the police car and, therefore, “the trial court erred in admitting evidence in the prosecution’s case-in-chief of the defendant’s post arrest, pre-Miranda failure to inquire about the welfare of the occupants of the other vehicle…”
The issue before the California Supreme Court in this case was, thus, slightly different than the issue in last year’s United States Supreme Court case of Salinas v. Texas (2013) 133 S.Ct. 2174. In Salinas, the Court held that, when a person does not expressly invoke his 5th Amendment privilege not to incriminate, pre-arrest and pre-Miranda silence can be used as evidence of their guilt.
The California Supreme Court, however, relied rather heavily on the rationale behind United States Supreme Court’s decision in Salinas.
“If an ambiguous act, omission, or statement could qualify as an invocation, ‘police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression “if they guess wrong.”’” (Citing Berghuis v. Thompkins (2010) 560 U.S. 370)
Amongst other criticism, Justice Goodwin Liu remarked in his dissent, “The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent.”
“It’s a very dangerous ruling,” said Tom’s attorney, Marc Zilversmit. “If you say anything to the police, that can be used against you. Now, if you don’t say anything before you are warned of your rights, that too can be used against you.”
I agree with Zilversmit’s conclusion; you’re damned if you do and damned if you don’t.
The 5th Amendment right against self-incrimination is a right. It has no beginning, nor does it have an end. The right exists indefinitely and it should not be inferred that a suspect waives it when their actions are exactly what the right confers; remaining silent.
Tom, and other people who happen to find themselves in a similar position, should not be compelled to announce that right. The Constitution has already done so.