Last year, the United States Supreme Court made a terrible decision. Okay, the Supreme Court made a lot of terrible decisions. One of the worst, though, was Salinas v. Texas which undermined a citizen’s “right to remain silent” by declaring that when an un-arrested person does not respond to a police officer’s question, that non-response is a legally admissible indication of guilt. Care2 wrote about this madness in “Your Right to Remain Silent Means You’re Guilty.”
If that sounds bad, it’s just gotten even more terrible. Now the California Supreme Court has looked at a similar case, People v. Tom, cited the previous U.S. Supreme Court case as precedent, and demolished citizens’ right to remain silent even further. In addition to free suspects, even people who have been arrested and have every reason to believe they can exercise their right to silence can now have their subsequent silence used against them in court.
Talk about mind-boggling. It seems like if the police want to incriminate you, they can just never Mirandize you and then consider your silence damning evidence.
People v. Tom, the California case in question, involved Richard Tom, a man who the justice system ultimately deemed guilty of speeding and driving under the influence of alcohol when he committed vehicular manslaughter. Later in court, the police testified that they gauged Tom’s guilt in part due to him never asking if the victims in the other car were okay after he was put under arrest.
My outrage over the verdict in People v. Tom is not a defense of Tom. Plenty of evidence exists to suggest Tom is guilty, all of which is stronger than Tom’s silence. At the point of being arrested and placed in the back of a police car, Tom probably thought he was supposed to clam up rather than chat with officers about the situation. There are a lot of reasons Tom may have chosen to say nothing about the people in the other car, particularly when unprompted to do so.
The problem is that whether Tom is guilty or not, using his silence as an indication of guilt sets a scary precedent throughout the legal system. Future innocent people who are arrested and stay quiet because they believe it is both their right and the right thing to do could be convicted using this because, thanks to some secret loophole, not saying anything actually implies that you are guilty, apparently.
It’s a viewpoint that the leftwing minority in the state Supreme Court agrees with. Justice Goodwin Liu wrote in his dissent, “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?” He also worried that this decision would motivate police to intentionally delay Miranda rights to use either a suspect’s words or silence against them later.
Tom’s own attorney, Marc Zilversmit, concurred as well. “It’s a very dangerous ruling,” he 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.”
It seems brazenly unfair if not outright deceitful to invent some kind of technicality to counteract the right to remain silent. When only legal experts have a firm understanding of when and when not to speak, it stops being a protection altogether.