Constitution

Brickbat: Say What?

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The California Supreme Court has ruled that what you don't say can be used against you. The court reinstated the manslaughter conviction of Richard Tom, who killed an 8-year-old girl and injured her mother and sister in an automobile accident. Prosecutors had told jurors during his trial that his failure to ask about the condition of the family he hit, before he was read his Miranda rights, was proof of his guilt. In a divided opinion, the court ruled that a suspect must explicitly assert his Fifth Amendment right not to incriminate himself for his silence to be inadmissible in court.

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  1. I am asserting my First Amendment rights. That is a tremendously stupid decision made by tremendously stupid people.

    1. Substitute “statist” for “stupid” and I’d agree with you.

  2. ” Prosecutors had told jurors during his trial that his failure to ask about the condition of the family he hit, before he was read his Miranda rights, was proof of his guilt.”

    I am not sure how that is evidence against someone except as a silly rhetorical flair. It also seems to not be in dispute that his actions killed those two people so getting a conviction overturned on that basis is weak.

    1. Re conviction, the issue doesn’t seem to have been whether he killed them, but whether he was driving without due regard, so he might have been convicted of a tougher type of manslaughter than he actually committed. It’s hard to know without reading the full judgment, which I am still ploughing through.

      Re the DA’s statement, he seems to have been claiming that, in effect, silence = consciousness of guilt, or worse:

      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

      Consciousness of guilt can be probative, but it’s usually an issue when the suspect goes on the lam, not when they shut their mouths like any sensible person would. It certainly isn’t supposed to go to the elements of the offence. I suspect the Court’s reasoning is very sloppy on this point. I look forward to having my dismal prediction confirmed.

      The decision is here: http://www.courts.ca.gov/opini…..202107.PDF

      1. Great. An Ozzie Sheila understands the US constitution better than the Supreme Court of our largest state.

        1. Sorry, that was sexist. I just like showing off my knowledge of foreign slang.

          1. Don’t apologise – always love here for BP. Even though he can’t spell Aussie 🙂

    2. You’re not sure how that has ANY tendency to make a fact more or less probable?

      You can’t be that stupid.

  3. This decision is one of the more obvious signs of why letting government officials such as SCOTUS judges decide the meaning of a document that was intended to limit government power (the Constitution and especially the Bill of Rights) is a bad idea.

    Expecting the government to limit itself is a hard fail.

  4. Anything you *don’t* say can and will be …

    Can’t we use this against Lerner?

    1. Yes, and we have been using it against her for months. Just in the court of public opinion, not in a court that matters.

  5. “You have the right to remain silent. Of course, if you do remain silent, we all know what that means.”

    1. The innocent (apart from cops, Lois Lerner, and other dedicated and selfless public servants) have nothing to hide.

  6. But the cops can lie outright, and that’s okay.

  7. OK, I get the 5th Amendment. We have a right to not incriminate ourselves, so authorities can’t threaten us to make us talk. I also get why pleading the fifth is inadmissible in court. Most jurors would think that pleading the fifth means you have something to hide and therefore pleading the fifth is a type of self-incrimination. But I don’t see how simple silence is self-incrimination. If everything we say (except “I plead the fifth”) is admissible, why not our refusal to speak?

    In this specific case I think the prosecution is making a retarded argument, but I don’t see why he shouldn’t be able to make that argument and let the jury decide whether it had any merit. Furthermore, what if the prosecutor had just mentioned that the defendant remained silent after the accident without saying explicitly that it was tantamount to an admission of guilt? Then would the defendant’s silence be admissible?

    1. Most jurors would think that pleading the fifth means you have something to hide and therefore pleading the fifth is a type of self-incrimination.

      Jurors should be instructed otherwise.

  8. Just because someone is sociopathic or has Aspbergers shouldn’t make them more guilty. The protection of life and property should have “thought crime” removed from punishments.

    1. IANAL, but isn’t “reckless disregard” or “indifference to others” part of manslaughter (as opposed to a mere accident)? If so, when there’s a serious accident that involves injury and death, the reaction of the driver who caused it (going 67 in a 35 zone) seems to be germane. If he says “Oh my God, are those people OK??” it makes the whole thing seems like just an accident. If he says nothing, it seems like he doesn’t seem to care, hence “disregard” or “indifference.”

      But I agree that silence might be caused by something other than indifference.

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