Post-Arrest Silence Can Be Used Against California Defendants

In a horrible decision delivered on Thursday, the California Supreme Court ruled 4-3 that a criminal defendant’s silence after he is arrested, but before he receives his Miranda warnings, can be used against him at his trial.  Click People v. Richard Tom to read the opinion.

In February of 2007, the defendant was speeding in his Mercedes sedan when he slammed into a car being driven by Loraine Wong.  Wong’s two daughters were in the backseat.  Wong and one of her daughters were injured but survived.  Wong’s other daughter, age 8, was killed in the collision.  The government presented testimony that the defendant was driving 67 miles per hour in a 35 mile per hour zone and failed to brake before he struck the victims’ car.  The defendant had been drinking prior to the accident and a government expert witness testified that at the time of the accident, the defendant’s Blood Alcohol Content was a .098 and he must have had six drinks.  The defendant was charged with motor vehicle homicide and operating under the influence of liquor.

During the trial, the prosecution offered evidence that following the accident, the defendant never asked about the condition of the victims.  The prosecutor argued that the defendant was either scared or “too drunk to care.”  The defendant was acquitted of the alcohol-related charges but convicted of motor vehicle homicide and sentenced to serve seven years in prison.  The California Court of Appeal reversed the defendant’s conviction, holding that the defendant’s post-arrest, pre-Miranda failure to inquire about the welfare of the other car’s occupants could not be used against him.  The California Supreme Court reversed the Court of Appeal decision and reinstated the defendant’s conviction.

The right to remain silent is found in the Fifth Amendment to the United States Constitution.   The California Supreme Court ruled in this case that assuming the defendant had the right to remain silent, he failed to invoke the right.  Essentially, by failing to affirmatively state that he wanted to exercise his right to be silent, the defendant was not subject to Fifth Amendment protection.  Three justices dissented.  The principal dissent argued, “[t]he 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.”  The dissent pointed out that police now have an incentive to delay reading Miranda warnings to defendants who are in custody, because the defendants’ post-custody, pre-Miranda silence can be used against them in court.

The outcome of this case likely would have been different in Massachusetts.  In Commonwealth v. Andujar, the Massachusetts Appeals Court ruled that “[a] defendant’s silence while under arrest and prior to receiving Miranda warnings cannot be used against him…. A defendant, when in the hands of police, should be able to invoke core constitutional rights, such as the right to remain silent, without fear of making implied or adoptive admissions.”

This case is incredibly dangerous for anyone arrested in California.  As the dissent points out, it defies common sense to suggest that by simply remaining silent following an arrest, defendants are not technically invoking their right to remain silent.