Tuesday, August 26, 2014

California Supreme Court: Don't Be Silent If You Want to Be Silent

When last we considered the contours of the privilege against self-incrimination in this space, it was on account of a startling holding by the United States Supreme Court. (“Deafening Silence.”) The Court had just issued a June, 2013 opinion allowing the government to prosecute suspects with silence. Specifically, the decision in Salinas v. Texas established what happens when:
  • an officer interrogates a suspect who has agreed to talk and isn’t yet under arrest
  • the suspect hasn’t explicitly invoked the right to silence, and
  • the suspect doesn’t respond to a question.
In those circumstances, the Court said, the prosecution can present evidence of the defendant’s saying nothing and argue to the jury that it’s evidence of guilt.

Peeling Back

Perhaps it was na├»ve not to expect a further peel-back of the Fifth Amendment’s self-incrimination clause, but it seemed like there wasn’t much more a court could do. No one would dare say that a suspect who is under arrest and hasn’t heard the Miranda warning has to say some set of magic words in order to invoke the right to silence. Right? Well…

This month the California Supreme Court took Salinas v. Texas to its illogical extreme, holding that post-arrest, pre-Miranda-warning silence can be used against a suspect whom the police haven’t interrogated. (People v. Tom, S202107 (Aug. 14, 2014).) The onus is on the suspect to prevent this use by stating an unequivocal intention to invoke the privilege against self-incrimination. (For the limitations on the California holding, see Can the government use arrestees' silence against them?)

In the case before the court, defendant Richard Tom had been involved in a fatal car accident. The prosecution alleged but couldn’t prove that he was under the influence at the time of the collision. Neither before nor after his arrest did Tom ask about the welfare of those in the vehicle he hit. The prosecution presented this fact to the jury and argued that Tom’s seeming lack of concern about the victims proved his guilt. The theory was that he either knew he had committed a crime and therefore didn’t want to talk about it or was “too drunk to care.”

A jury convicted Tom of vehicular manslaughter with gross negligence involving great bodily injury. The judge sentenced him to seven years in prison.

Ivory Towers

The majority of California’s high court seemed pretty much okay with the deployment of Tom’s silence in the above manner. The dissenters, however, had something to say. And Justice Goodwin Liu served as the voice of reason. (The decision was 4-3.)

Liu offered more common sense than apparently suited the majority, rightly observing that “often the best way not to incriminate oneself is to say nothing.” 

Under the majority’s opinion, saying nothing will no longer cut it. Instead, “a suspect in custody cannot later claim the protection of the Fifth Amendment unless he breaks his silence and ‘clearly invoke[s]’ the privilege in a manner that ‘a reasonable police officer in the circumstances would understand.’”

Justice Liu commented of this holding, “No one disputes that if the police in this case had given Miranda warnings to defendant Richard Tom immediately upon placing him in custody, the prosecutor could not have relied on his postarrest silence to show consciousness of guilt regardless of whether he clearly invoked the Fifth Amendment privilege.”

Why, he asked, should it matter that the officers only gave Tom the warning later? And doesn’t the new rule develop “an incentive for arresting officers to delay interrogation in order to create an intervening ‘silence’ that could then be used against the defendant”?

The majority—with a straight face—responded to Justice Liu’s queries by saying the suspect should just invoke the privilege. Of course, this kind of ivory-tower approach does little for those defendants who aren’t completely up to speed on constitutional law. And even those who are might not know exactly what to do. Liu remarked:

[T]he court does not explain how its rule is supposed to work in practice. As Tom sat in the back seat of the patrol car, he was not being questioned by the police. To whom and how should he have invoked the Fifth Amendment privilege? 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? And if so, how would that have been materially different from simply remaining silent? Moreover, why should it matter whether Tom invoked the privilege to a police officer? What purpose would that have served, since no police officer was trying to question him?


Though Justice Liu fought the losing battle in this case, the law on post-arrest, pre-­Miranda silence hasn’t actually been written—at least not in stone.

We now have different law in different places. Neither the federal circuit courts nor the courts from state to state agree on what the government can do in its initial presentation of evidence to a jury. Some say the Fifth Amendment prohibits prosecutors from offering evidence of post-arrest, pre-Miranda silence. Others, like the California Supreme Court, say it doesn’t.

And the California Supremes’ Tom decision doesn’t even create uniform law in cases arising out of the Golden State. That’s because the U.S. Ninth Circuit Court of Appeals, which hears federal cases occurring in California, has taken the pro-defendant point of view.

So, as we had to do when it came to cellphone searches, we’ll just have to wait. Only the U.S. Supreme Court can resolve the disparity. But if last year’s Salinas decision is any indication, the absurd will become the law of all the land.