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Think you have the "right to remain silent" if you are a criminal suspect? Think again...

Posted by Neil Shouse | Aug 20, 2014 | 0 Comments

Anyone who has ever watched a cop show in America is familiar with the sentence, "You have the right to remain silent."

This warning, part of the famous "Miranda rights," is usually taken to mean that your choice to remain silent will not be held against you if you are charged with a crime. Unfortunately, the California Supreme Court calls that interpretation into question.

In People v. Tom, the Court took up the case of Richard Tom. Tom was convicted of the California crime of gross vehicular manslaughter for his role in a car crash that killed a child and seriously injured her sister and mother.

At Tom's jury trial, the prosecution repeatedly mentioned the fact that, after the accident, Tom never asked the police about the condition of the people in the other car. The DA urged the jury to conclude that Tom's silence meant that he knew he had done something wrong.

The California Supreme Court held that there is nothing wrong with this strategy--that is, taking Tom's silence as proof of his guilt.

According to the Court, because Tom had not yet been read his Miranda rights, he needed to explicitly assert his right under the Fifth Amendment to remain silent. Since he did not do so, there is nothing wrong with using his silence against him.

People v. Tom--along with the closely related U.S. Supreme Court holding of Salinas v. Texas--is terrible news for anyone who has the bad luck to find themselves suspected of a crime in California.

This ruling affects the period of time after someone has been taken in custody by police--but before they have been read their Miranda rights. At this point, most people are confused and scared and have not had a chance to consult a lawyer.

And most people at this point probably have no idea that refusing to answer a question--or, as in Tom's case, failing to ask a question!--can later be treated as evidence of their guilt. For more information, see our articles on lying versus remaining silent in California criminal cases, giving officers false information in California, and the Myth surrounding Miranda rights in California DUI investigations.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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