Anything You Don't Say Will Be Used Against You

California just decided your silence sounds awfully guilty.

SACRAMENTO — Those "Miranda" warnings that police read to suspects following an arrest are, as a California Supreme Court justice recently acknowledged in a dissenting opinion, a ubiquitous part of American culture thanks to TV crime dramas and cop shows.

"You have the right to remain silent. Anything you say can and will be used against you in a court of law." But following the California high court's 4-3 ruling in a vehicular manslaughter case last Thursday, perhaps the Miranda wording ought to change given that anything you previously "didn't say" could be used against you, as well.

In People v. Tom, California's Supreme Court justices upheld the prosecution of a man based on the district attorney's argument that the defendant's silence was evidence of guilt.

The cop shows make these matters seem simple. A person is arrested. The officer reads the suspect the Miranda wording. Suspects can then clam up and wait for an attorney. In real life, though, these matters can become more complicated and legalistic.

Last week's decision stems from a horrific 2007 car accident in Redwood City, south of San Francisco. Richard Tom broadsided Loraine Wong's car at a high speed, killing her 8-year old-daughter and seriously injuring her 10-year-old daughter. Tom was convicted of gross vehicular manslaughter. The jury acquitted him on charges that he was driving while intoxicated.

A key element of the gross-negligence charges — the allegation that Tom behaved without regard for the well-being of others — was that he never asked police officers about the condition of Wong and her children.

"Do you know how many officers that he had contact with that evening?" asked the district attorney. "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 too drunk to care."

On a human level, it's troubling that a driver who caused a terrible wreck didn't ask about the condition of the other car's occupants, but civil libertarians think it's even more troubling what the court's decision means on a legal level.

The state Supreme Court found that being silent can be used against defendants in situations where the suspect is in custody, but not yet read his Miranda rights. A U.S. Supreme Court decision last year came to a similar conclusion regarding "pre-arrest" situations. Per the courts, a suspect needs to affirmatively invoke such silence ("Hey, I'm exerting my Fifth Amendment rights") to not have the silence be used against him.

"The court today holds, against commonsense expectations, that remaining silent after being placed under arrest is not enough to exercise one's right to remain silent," wrote Justice Goodwin Liu, in his dissent. And he questioned how that would play out in real life. Tom was in custody (de facto arrested but not yet read his Miranda rights or interrogated) but wasn't being questioned.

"To whom and how should he have invoked the Fifth Amendment privilege?" Liu asked. "Was he required to approach an officer on his own initiative and blurt out, 'I don't want to talk'? Would it have been enough for Tom to say just that, without mentioning the Fifth Amendment or otherwise indicating he didn't want to incriminate himself?"

Under the situation as approved by the high court, Liu wrote (quoting a prior case), a suspect now only has "the 'cruel trilemma' of incriminating himself, lying, or demonstrating his guilt by silence." That hardly seems reasonable — and it certainly makes things unclear, especially given that the requirements differ depending upon whether a suspect will be tried in state or federal court.

Most people who are arrested find themselves in a confusing and upsetting situation — and the easiest way not to say anything wrong is simply to stay silent, explained American Civil Liberties Union of Northern California's amicus brief in the case. If suspects go out of their way to ask for a lawyer or assert their Fifth Amendment rights, the group wrote, they fear they will "make the police even more suspicious of them, or worse."

This new state of affairs won't make sense to people who watch those police shows, where everyone knows that a suspect is allowed to stay silent. But it might make sense to fans of Joseph Heller's novel about bureaucratic "damned if you do, damned if you don't" situations, called "Catch-22."