You used to have a right to remain silent.
— The California Supreme Court, People v. Tom
When the Supreme Court issued its Miranda decision, the expectation was that it would prove the end of police interrogations, the end of confessions, as no one, after being given the warnings, would be stupid enough to talk to the cops. They clearly had their finger on the pulse of humanity.
As it turned out, Miranda has proven to be hugely confusing to people, as has pretty much every rule of law ever crafted. People regularly complain that their arrest was unlawful because cops didn’t give the Miranda warnings, even though the only remedy would be the inability to use custodial statements at trial. People have a really hard time grasping this.
The Supreme then decided that silence wasn’t silence anymore, anyway, in one of its most ill-conceived cases, Berghuis v. Thompkins, holding the post-Miranda silence wasn’t an invocation of silence, but rather evidence to be used against the guy who didn’t know how to invoke his rights properly.
Sam Alito, who has never gotten a speeding ticket, took the concept a step further, writing in Salinas v. Texas that pre-custodial questioning, without benefit of the Miranda warnings, shifted the burden onto the person being interrogated to invoke his right to remain silent or, surprise, it was fodder against him. You know, what kind of innocent guy wouldn’t answer police questions? And let’s not go near the question of what distinguishes a custodial interrogation, as it’s only good for headaches.
The case began with a car accident in Redwood City, south of San Francisco, where Richard Tom broadsided a car driven by Loraine Wong — killing her 8-year old-daughter and seriously injuring her 10-year-old daughter.
Tom said nothing, consistent with the pop legal advice of “you have the right to remain silent; use it.” For those who can remember only one sentence, this is better advice than spill your guts, but it’s not quite good enough.
The prosecutor elicited testimony Sergeant Alan Bailey over the objections of the defense as to Tom’s silence about the well-being of the accident victims. She asked “So, during any of this time [at the accident scene], the defendant ever ask you about the occupants of the other vehicle?” Sergeant Bailey said that he did not.
Then, in her direct examination of Officer Josh Price, the prosecutor asked, “During those three hours [after the accident], did the defendant ever ask you about the condition of the occupants of the Nissan?” Again over objections, Price answered no.
Finally, in her closing argument, the prosecutor told the jury “how [Tom] acted the night of the collision” showed “his consciousness of his own guilt.” She added that it was “particularly offensive, he never, ever asked, hey, how are the people in the other car doing? Not once. . . . Not once.
Not only did the prosecutor manage to find a way to use Tom’s silence against him, but with the added benefit of making him appear a monster, the sort of man who cared nothing about killing a child. Like a cherry atop a prosecutor’s sundae, the hatred evoked by this line of question was so strong that the court officers probably feared the jury lunging out of the box to hang him in the courtroom.
And the California Supremes, albeit by a sharply divided court, were good with this.
The U.S. Supreme Court held in Salinas that “[t]he privilege against self-incrimination is an exception to the general principle that the Government has the right to everyone‘s testimony” but that “a witness must assert the privilege to subsequently benefit from it.”
Remaining silent isn’t asserting the privilege. Not anymore.
But the means of attack used in Tom is far trickier, far more nefarious, than just the use of silence in the absence of an affirmative invocation of the right by the defendant. Sure, that’s bad enough, to shift the burden to the defendant in a trick play of Miranda, but consider how the Tom gives rise to the affirmative use of “things a person didn’t say” where a prosecutor can argue he should have.
In this case, the defendant failed to ask about the condition of the people in the other car, which was what the prosecutor argued turned him into a monster killer. After all, wouldn’t any normal person do that? It opens up the opportunity to the prosecution to invent a concern that any normal, innocent, person would have expressed, and use their failure to do so as a weapon against them.
So it’s not merely about whether a defendant knows how to properly invoke his right to remain silent, but to somehow divine every possible “normal” concern that could possibly be invented by the prosecution for use against him, to prove he’s evil incarnate by his failure to care enough.
The United States Supreme Court stuck defendants in the middle of a mine field, and the California Supreme Court decided that the defendant deserved to be destroyed even if he never actually stepped on a mine. So whenever you hear the advice to just STFU, bear in mind that you open the door to prosecutorial ingenuity about what you might have said, if only you weren’t so totally guilty.