You do NOT have a right to remain silent even if NOT questioned.

...at least in California.

California Supreme Court: Prosecutors May Use The Silence Of A Defendant As Proof Of Guilt

The California Supreme Court has handed down a major 4-3 decision in a vehicular manslaughter case that further erodes the rights of citizens to remain silent after being placed into custody. As are all familiar with the Miranda warning that “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” However, as we recently discussed, the Supreme Court by plurality decision that effectively allowed pre-Miranda silence to be used against a criminal defendant in Salinas v. Texas 570 U.S. ___, ___ (2013) (plur. opn. of Alito, J.). Now, the California Supreme Court in People v. Tom, has handed down the first major application of Salinas and ruled that the prosecution can use the silence of a defendant (Richard Tom, left) as evidence of guilt. In California, it is not simply what you say but what you do not say that can be used against you. It is not clear if they are going to change the warning to let people know that if they do not speak, their silence can be used as incriminating.

In June, the United States Supreme Court already ruled: "that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent.

In that case, the defendant (during a voluntary police interview) refused to answer a particular question, while answering others. That fact was used as evidence against him.

In the newest California case, the defendant was involved in a car accident, where an 8 year old occupant of the other car died. The defendant, while in police custody, but prior to actually being arrested, never inquired about the 'status' of the injuries of the people in the other vehicle. That 'failure to ask' was used as evidence of the defendant's own knowledge of his guilt in his trial.

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. Do you know how many officers that he had contact with that evening? Not a single one said that, hey, the defendant asked me how those people were doing. Why is that? Because he knew he had done a very, very, very bad thing, and he was scared. He was scared or — either that or too drunk to care. But he was scared. And he was obsessed with only one thing, that is, saving his own skin.”

So there you have it.

In California, you must not only invoke your 'right to remain silent' before an arrest during questioning to avoid answering specific questions, but you must specifically invoke that right to protect you against any inferences that can be made against you for questions you have not been asked.

People v. Tom - California Courts

I was brought up in a family with a judge and a police officer,'i was reminded over and over again if i ever get arrested, is to ask the arresting officers name, and then ask for a lawyer.

a reply to: loam

Then what the hell is the purpose of having the Miranda rights?


Just stuck a fork in the US, Nope not done just yet, getting closer though

originally posted by: SLAYER69
a reply to: loam

Then what the hell is the purpose of having the Miranda rights?


Just stuck a fork in the US, Nope not done just yet, getting closer though

They guy wasn't arrested.

And the title and premise of this thread is very misleading.

The guy in this question didn't decided to not answer a question, the prosecution is saying his failure to be concerned about the condition of the occupants of the other car meant that he was guilty.

It is a poor argument, but it doesn't violate his right to remain silent.

a reply to: loam

Which begs the question, "Why would anyone in their "right mind" want to live in the State of California!

I see some issues with this.

Basically, it does away with a persons "Miranda rights" doesn't it? What cop in their right mind would read them to a person knowing that their silence beforehand means an instant conviction?

Anyhow, I guess that if you live in California and get accosted by the police, DEMAND you be read your rights immediately?.......

a reply to: seeker1963

you mean in the usa...

i know this story is from CA but check how police are acting in all the place...

originally posted by: Dolby_X
a reply to: seeker1963

you mean in the usa...

In general YES!

However, this OP was about the state of California.

a reply to: loam

you know when I first read this, I had my doubts since it was from some conspiracy blog, but I just found the court decision pdf.

People V. Tom - California Courts

Here are some other news outlets about it too:
Redwood City man's conviction in fatal crash to remain in doubt
Court: Silence Can Be Used Against Suspects

Though it doesn't look like this is the end of this story. From the Mercury News link:

A divided California Supreme Court on Thursday effectively restored Richard Tom's conviction for the February 2007 fatal crash but ordered a state appeals court to revisit the complex legal questions that have plagued the case for years. As a result, the outcome will remain in doubt, although the state's high court made Tom's appeal tougher to win.

a reply to: Krazysh0t

The link to the case was already included in my post.

The case was only remanded to determine if the defendant had sufficiently invoked the privilege:

In future cases, the better practice for a party seeking to offer evidence of postarrest, pre-Miranda silence or a party seeking to exclude such evidence is to proceed by way of a motion in limine, which will offer the trial court the opportunity to develop a record as to whether the circumstances would have made it clear to the officer that the defendant had invoked the privilege against self-incrimination, whether the evidence of silence is relevant, and, if so, whether its probative value is substantially outweighed by the probability of undue consumption of time or undue prejudice under Evidence Code section 352.

The point still stands: you must specifically invoke that right to protect you against any inferences that can be made by your silence.

a reply to: loam

Yes I see that now. Must have missed it initially. This is a severe problem (though it adds one more reason among the mountain of them to not go to California).

More reason to abandon ship.

I know that in Texas, but this might be other places as well, they don't even have to read you your rights when they arrest you. Your rights are read to you when you go before the judge. This may be only when they are not questioning you, but I'm not sure. So I wonder if that means that if they do question you they are breaking the law? I too think the title of this thread is a bit misleading, considering that his lack of concern is what is seemingly being used against him. This is a horrible argument for a number of reasons.

Here is the real problem as I see it.

Any civilized society, once it has emerged from the truly dark ages, sees the right to shut up as not only a right, but something beyond. Police are taught to lie, threaten, cheat and violate all "non police" rights to get what they want. In fact, police are only governed by internal policy, the laws are outside them in all but the truly extreme cases - so lying is not against internal policy and neither is threatening. The only protection against that is to shut up. All fair.

The politicians, at the behest of the unseen, have painted themselves into a corner. The only way to get more people arrested and in jail is to make sure folks cannot defend themselves. Politicians must do this, as they have one job - make laws, and all laws at this point restrict human activity to the point of physical imprisonment without a jail cell. All fair.

To get this done they have to go through the courts so they can say, "hell we only want to make you safer, not take away your rights, but if the court says, the court says." So..... In order to do this they must bring truly horrific cases to court. In this case they bring a child killer, oh I know that seems absurd, but the headline, should this guy get of on the horrifying human right "legal technicality" would be: Killer is Released on Technicality. Humans are no longer safe in the eyes of the court.

I suspect if you look back at the "test cases" that eroded privacy and rights in the case of arrest or detainment you will find the are cases where the court will look like "criminal loving lefty liberals" if the find in favor of human rights. Instead of bringing a car searching case based on stolen crochet hats, the "test cases" are "searching a car to find a baby killer" or, instead of bringing a cellphone search based on a stolen sling shot, the "test cases" are "gang killer pulled over at 3AM after two innocent star-athlete teens were killed nearby."

There is always a loophole, a technicality used to get a restriction of freedom and get more people in jail where they belong.

originally posted by: kruphix

originally posted by: SLAYER69
a reply to: loam

Then what the hell is the purpose of having the Miranda rights?


Just stuck a fork in the US, Nope not done just yet, getting closer though

They guy wasn't arrested.

And the title and premise of this thread is very misleading.

The guy in this question didn't decided to not answer a question, the prosecution is saying his failure to be concerned about the condition of the occupants of the other car meant that he was guilty.

It is a poor argument, but it doesn't violate his right to remain silent.

To my mind that is even worse. It's not just remaining silent, it is Not Saying The "Right" Thing At The "Right" Time. In other words, all the way down the process, from the cops to the judge if anyone thinks you didn't say what they think you should have said when you should have said it, this assertion of "should haves" can be incriminating. We might as well accept spectral evidence.

originally posted by: redhorse

originally posted by: kruphix

originally posted by: SLAYER69
a reply to: loam

Then what the hell is the purpose of having the Miranda rights?


Just stuck a fork in the US, Nope not done just yet, getting closer though

They guy wasn't arrested.

And the title and premise of this thread is very misleading.

The guy in this question didn't decided to not answer a question, the prosecution is saying his failure to be concerned about the condition of the occupants of the other car meant that he was guilty.

It is a poor argument, but it doesn't violate his right to remain silent.

To my mind that is even worse. It's not just remaining silent, it is Not Saying The "Right" Thing At The "Right" Time. In other words, all the way down the process, from the cops to the judge if anyone thinks you didn't say what they think you should have said when you should have said it, this assertion of "should haves" can be incriminating. We might as well accept spectral evidence.

It should be said, this horrifying, "not acting as you should" argument was used to convict wilson (?) in Texas of killing his children in a house fire. The neighbors said his "non reaction" meant he did it because they would act normal and wasn't acting normal - they were experts I guess in fires of the home with children inside. The police said his "non reaction" meant he was the prime suspect. He was convicted, executed and now has the distinction of being a known INNOCENT to be executed.

Miranda RIGHTS have been SUPERCEDED and is NO longer in EFFECT ALL Constitution rights are in flux they HAVE NOT succeeded because of the second one stopping them with 30 round mags and a few million vets that own some.

a reply to: SLAYER69

They won't stop until the blood runs clear.

a reply to: loam

NEVER EVER answer any police questions!

a reply to: th3dudeabides

Actually, these cases teach that is not enough. Essentially, you have to invoke your privilege the moment law enforcement engages you. Then you can stay silent.

a reply to: loam

So, let's retroactively re-question Bush/Cheney, Obama/Pelosi?

What's good for the goose is good for the gander.