Silence can be used against you

Tell Police Why You are being quiet!

The California Supreme Court has entered one of the worst rulings I've ever seen, destroying sixty years or more of established civil rights law and gutting the 5th Amendment to the Constitution. No citizen of the United States can be made to testify against himself. If you choose to talk to police, whatever you say can be used against you. This is the mantra of the Miranda warning.

 

However, this Court has said that until you affirmatively evoke your right not to speak, your silence IS speech and can be used against you. According to this decision, a prosecutor can stand up and tell a jury that your silence means you are guilty. Silence equals guilt. Which stems from the logic that an innocent person would tell what happened. Innocent people talk, guilty people claim the 5th. That stereotypical thinking is what is exploited here to convict a person.

 

My experience in dealing with thousands of criminal cases is that it is more likely a guilty person will try to explain away his crime. An innocent person falsely accused often shuts up and gets angry and frustrated. Guilty people often try to talk their way out of it.

 

These are not truths that I would apply as rules of the road, simply observations I've made. The point is that the assumption that the California courts have made does not hold true. Neither the choice to talk to police or to remain silent is an indicia of anything. 

 

The police will often try to manipulate people into talking using the strategy that, if you have nothing to hide you'll tell us what happened, or, only guilty people need lawyers. If the police were really interested in solving the crime, this might not matter. But, the police are interested in arresting the person in front of them. If they're asking you question, you're a suspect. If you're a suspect, they want to arrest you. So, they try to get you talking and hang you with your own words.

Now, they can hang your with your own silence.

Since the ruling requires a suspect to invoke his rights, what happens if the police wait four hours to advise you of your rights, or a day, or two? Does the fact that you have remained silent about the accusations against you mean you are guilty? Can the police create an indicia of guilt by letting you sit there in silence? According to this Court they can.

If asked, my advice to clients is to shut up. That is still my advice. Don't talk to the police. They are not there to help you, they are there to make an arrest. If a prosecutor tries to use that against you, let your lawyer handle it. Fortunately, a California decision has no influence on any other State. Until your state supreme court adopts this decision, the prevailing law remains intact.

The bottom line here is that the facts in this case and the "right outcome" of this case - i.e. the guilt of the defendant, were more important to this court than the preservation of our fundamental rights. For this court, the 5th amendment rights of a citizen were not as important as the conviction of that citizen for this crime. The court is no longer doing justice. It is no longer upholding the law. It is sacrificing a fundamental right of all citizens so this conviction could be maintained. In doing so, it has given the prosecutors in California another, underhanded tool with which to go after people who innocently exercised their right not to talk.

We must be careful not to let this happen anywhere else.

Bob Vogel
rlvogel@robertvogellaw.com
www.robertvogellaw.com
 

 

 

Court: Silence can be used against suspects

AP Photo: Jeff Chiu

In this Nov. 10, 2011, file photo, Justice Marvin Baxter sits on the bench at the California Supreme Court in San Francisco.

3 days ago By PAUL ELIAS of Associated Press

 

SAN FRANCISCO (AP) — The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.
Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.
Prosecutors repeatedly told jurors during the trial that Tom's failure to ask about the victims immediately after the crash but before police read him his so-called Miranda rights showed his guilt.
Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect's refusal to talk before invoking 5th Amendment rights against self-incrimination.
"It's a bad and questionable decision," said Dennis Fischer, a longtime criminal appellate lawyer.
Tom's attorney Marc Zilversmit said he is deciding whether to petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal.
"It's a very dangerous ruling," Zilversmit said. "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."
The state Supreme Court in a 4-3 ruling said Tom needed to explicitly assert his right to remain silent — before he was read his Miranda rights — for the silence to be inadmissible in court.
Tom has been freed on $300,000 bail pending his appeal.
Tom was arrested after his Mercedes sedan plowed into a car driven by Lorraine Wong, who was turning left onto a busy street.
Prosecutors argue that Tom's car was speeding at 67 mph in a 35 mph zone when the collision occurred. He was placed in the back of a police cruiser but was not officially arrested and advised of his rights until later in the day.
Prosecutors said Tom's failure to ask about the Wong family while detained showed his guilt.
Justice Goodwin Liu dissented.
"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," Liu wrote.
The ACLU filed a friend of the court brief supporting Tom's appeal.
Fischer and others say the ruling might not be the last word on the issue.
The high court ordered the court of appeal to reconsider the case, meaning it could return to the California Supreme Court.
The high court is undergoing a dramatic transition and it's possible that two new justices would reconsider the ruling.
Baxter, a Republican appointee and reliable conservative vote on the court, is retiring in January.
Meanwhile, Gov. Jerry Brown recently nominated Stanford University law professor Mariano-Florentino Cuéllar to fill a vacancy.
"This could be the last hurrah for a conservative Supreme Court," appellate lawyer Jon Eisenberg said.