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."

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  1. …remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent…

    What kind of topsy-turvy world did I wake up in today? Any second now, Rod Serling is going to step into my living room and explain how I’m entering The Twilight Zone.

    1. OBSOLETE!

      1. The Obsolete Man

        Probably my favorite episode of The Twilight Zone.

        1. That was a good one. I need to watch it again.

    2. Remaining silent is not enough to exercise one’s right to remain silent? They’re rioting in the wrong state.

  2. I’m afraid it’s coming to something like this:

    – So, logically–
    – If she weighs the same as a duck…
    – she’s made of wood.
    – And therefore?
    – A witch!
    – A duck! A duck! – Here’s a duck.
    – We shaIl use my largest scales.

  3. It’s a MADHOUSE.

    The fucking monkeys have taken over the zoo.

  4. Yeah, I gotta say this doesn’t bother me all that much. The prosecution represented his not asking about the family as fact, not a “statement” or “non-statement” by the dude. You can dispute their claim by saying he did ask someone at some point, or by saying he was freaked out or in shock and simply thought about it later. But to overturn a conviction because his “factual” lack of expressed concern is “forced testimony” is kinda weak.
    Never talk to the police without representation.

    1. Um, that’s the point. He didn’t talk to the police without representation, and that was used against him in a court of law.

      Not asking the police about the others involved in the crash doesn’t not logically mean a person knows they are guilty of a crime. Nor is it compatible with the 5th amendment.

      1. If it is a fact that he didn’t ask, the value of that is for a jury to decide. I agree with you that it isn’t logically an acknowledgment of guilt. I wouldn’t have let that influence my determination. But presenting it does not mean the trial was violating his rights or that the verdict should be void.
        Your first point is silly. It wasn’t his “not talking to the police” that’s at issue. By “talking to the police” it is understood that to be a reference to declarations not the opposite. If he’d been grinning the whole time, would that violate his rights? His demeanor and physical responses are valid evidence, why not a lack of expression of concern? And again, I agree it wasn’t indicative of guilt.

      2. Not asking the police about the others involved in the crash doesn’t not logically mean a person knows they are guilty of a crime

        It doesn’t mean shit. The dude could be autistic, for example. Or a sociopath. Such people don’t express concern for others, and there’s nothing at all you can read into that.

      3. You’re confusing two different issues, and badly, BADLY misunderstanding what relevant evidence is.

        People sometimes struggle with that.

  5. Has Judge Baxter, who wrote this opinion, ever denied being the Zodiac Killer? Does anyone else find his silence on this matter suspicious?

    1. Can we water board the judge for his crimes against the American people?

  6. Not truly caring about the welfare of others does not preclude someone from “behaving without regard for the well-being of others”. Being unemotional and showing no concern for the injured does not logically in itself mean that the person did not take due care. (Aside from operating heavy machinery when drunk shows recklessness in the first place). Saying he should have asked about the welfare of the injured and therefore he was reckless is more an indictment of people without the proper amount of FEELZ than the actions that led up to the incident.

  7. Of course, asserting the fifth amendment when not being asked anything strikes me like saying “I’m not speaking to you! So there!” Just ridiculous.

  8. What does the Fifth Amendment actually say? Stupid question I know.

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    How does this prosecution run afoul of the Fifth? He wasn’t compelled to testify. It wasn’t his refusal to answer questions or talk about the crime he was alleged to have committed that the DA was claiming as evidence of guilt. THAT is what the 5th amendment prohibits, not general inference about his frame of mind from his behavior.

    If you are going to be a Constitutional literalist, you have to be consistent about it.

  9. It’s also absurd that being drunk was an excuse for manslaughter in the first place .

  10. Well, technically the statement “you have a right to remain silent” doesn’t promise that nobody will ever attempt to use that against you, it simply means that it is not a crime to remain silent.

    Of course, we perhaps should expand that to “you have a right to remain silent and your silence will not be held against you”.

  11. This is occurring all over. Not just Komifornia!

  12. 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.

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