California Supreme Court Cuts Back Fifth Amendment Right to Remain Silent When Questioned by Police

[xchrom]

http://www.alternet.org/civil-liberties/california-supreme-court-cuts-back-fifth-amendment-right-remain-silent-when



If you’re in trouble in California and want to invoke your Fifth Amendment right to remain silent if questioned by police, you better speak up and say so—because not saying a word can and will be used against you in a court of law, according to the California Supreme Court.

In a 4-3 ruling earlier this month, The People v. Tom, the California High Court held that a suspect’s silence can be used as evidence against him or her. The details of the case are truly horrendous—because the accused, Richard Tom, had been drinking with a retired San Francisco police officer and then plowed into another car at an intersection, killing a girl in the back seat in 2007. Tom was driving 67 miles per hour in 35 mph zone, the court said. The other car was going 12 mph.

Tom never said a word to police as he was taken to the station and questioned, including asking about the injured, which state prosecutors said showed his callous character and guilt. He was convicted of manslaughter, where the judge said his lack of concern was relevant for showing criminal recklessness. That set the stage for an appeal, where a lower court ruled his silence could not be used as evidence. But the California Supreme this month ruled that it could.

The California Supreme Court cited a 2013 ruling by the U.S. Supreme Court, Salinas v. Texas, where Justice Samuel Alito weakened the rules for “right to remain silent” when questioned by police. In order to invoke that right, an individual has to explicitly assert it—telling police that’s what they’re doing, Alito wrote. California’s Supreme Court followed that template:

“Declaring that ―[t]he privilege against self-incrimination is an exception to the general principle that the Government has the right to everyone‘s testimony,' the Salinas plurality applied ― the general rule ‘that a witness must assert the privilege to subsequently benefit from it.' We likewise apply the general rule here and conclude that defendant, after his arrest but before he had received his Miranda warnings, needed to make a timely and unambiguous assertion of the privilege in order to benefit from it."

[Live and Learn]

1. So remaining silent can be used against you now? Ridiculous ruling! nt

[msanthrope]

3. Yes...because you did not invoke your right. nt

[Live and Learn]

5. Of course, because rights only become rights if one invokes them.

I get it, I think. So, anyone ignorant of their rights or handicapped and unable to invoke them are screwed? Wow, nice country we are becoming, huh?

[msanthrope]

6. Well....Miranda is a right that 'must' be invoked. I don't agree

with that, but that's the state of the law....

Invoke the 5th and 6th, and then keep your mouth shut.

[Live and Learn]

8. It didn't used to be, They were required to inform you of it and

unless you talked or didn't ask for a lawyer, it was understood that you were invoking it.

[msanthrope]

9. Not quite. I've never met an LEO who thought silence was anything

other than an opportunity.

[blkmusclmachine]

2. The Police State metastasizes.

When do we start to fight back against Corruption?

[bigdarryl]

4. This is FUCKING RIDICULOUS!!!!!!

Has the United States Supreme Court looked at this shit yet?

[msanthrope]

7. Yes....this ruling is fairly consistent with current jurisprudence...

http://seattletimes.com/html/politics/2021208775_apussupremecourtsilence.html

http://www.scotusblog.com/case-files/cases/salinas-v-texas/

You must invoke your 5th and 6th amendment rights....then shut your mouth.

[Nuclear Unicorn]

13. Honest question --

What if someone lacks the education or presence of mind (assuming the stress of being involved in a criminal investigation) to articulate their desire to remain silent? For example, being in emotional shock.

[VanGoghRocks]

14. IANAL, but my sense is it makes no difference. Judges and juries are now allowed to draw

inferences from a defendant's silence only when that defendant has not invoked his 'right' to remain silent before being informed of the 'right.' Truly Orwellian and we are down the rabbit hole.

I think we should bring back Stalin-ear show trials and complete the evisceration of the Bill of Rights.

[Nuclear Unicorn]

15. Maybe I'm just weird but

I would think remaining silent is less incriminating than saying outright that you invoke your right to not incriminate yourself.

[VanGoghRocks]

17. Not weird at all. If you don't invoke before being read your right, your post-reading

invocation of your 'right' can now be itself used as evidence against you.

We have met the enemy and it is us ~Pogo

[msanthrope]

16. Well, then you'd make a motion that they could not understand the Miranda warning, and that it was

apparent to the police that they did not. You'd argue that no waiver took place.

This is a difficult argument to win, although I have won it, on occasion.

[davidn3600]

11. Yep...and they've said it's fine

The ACLU even says you have to tell the police you are exercising your 5th amendment rights.

YOUR RIGHTS
- You have the right to remain silent. If you wish to exercise that right, say so out loud.

https://www.aclu.org/drug-law-reform-immigrants-rights-racial-justice/know-your-rights-what-do-if-you

[underpants]

10. SCOTUS ruled the same way last year.

I posted (below) earlier on this. The part that gets me isn't just that you have to declare what is already, or was, a right but that you have to do it BEFORE the start reading you your rights....which state that you have the right to remain silent. BEFORE - so if the police officer gets "You..." out of their mouth your clock has run out. It doesn't matter if you start running your mouth OR if you don't say anything. The former is never a good idea and now the latter is an admission of guilt. Absurd.

http://www.democraticunderground.com/10025455059

[VanGoghRocks]

12. The truly insidious part is that it's only a 'right' if you know it's a 'right' and know

that you have to invoke it in a timely manner for it to be a 'right.'

Means the 'right' to remain silent is effectively dead for all practical purposes, since silence (withou said invocation) can be looked upon by jury and judge as an indicator of guilt and they are now allowed to draw inferences from said silence. WTF?

Stalin lives! Bring back the show trials.

[Trillo]

18. Because what the police assert you do, you did.

Whether you did it or not.

[Rex]

19. So are they going to add that into the Miranda warnings?

You have the right to remain silent, which also will be used against you in a court of law.

[Live and Learn]

20. More like, 'You had the right to remain silent but since you didn't

invoke that right before being told of it, anything you say or don't say can be used against you.'

Doesn't requiring someone to SAY they are invoking their right negate the entire silence aspect of it?

[sarisataka]

21. You have the right to remain silent, but you have to say you are remaining silent

[gratuitous]

22. Isn't that nice?

As we all know, when a police officer engages you in conversation, there is a bright line between friendly banter (that won't be used as evidence) and actual interrogation in the course of an official investigation (that can be used as evidence).

Honestly, this stupid ruling requires every citizen to have the sensibility of a trained criminal lawyer in order to avail oneself of the protections of the Constitution. The added kicker is that most of the time, a criminal defendant doesn't testify at trial. Which means that the defendant's silence is subject to one and only one interpretation at trial: the law enforcement officer's. A person never gets a chance to tell a jury why he or she didn't say anything at any particular time.

It's also worth noting that during the bad old days of the Red Scare and the House Unamerican Activities Committee, that witnesses who answered any questions at all could not later invoke their Fifth Amendment rights. Even as innocuous a question as "Please state your name for the record" was sufficient to deny a person his right not to self-incriminate. I can easily see this ruling leading to another ruling that by informing the police that you are going to remain silent you have effectively waived that right, because you weren't silent.

Which isn't sensible at all, I have to admit.