Anything You Don’t Say Can Be Used against You


By Julia Cole
Most Americans have heard the phrase, “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” But a recent California Supreme Court ruling has established that a person’s silence may also be used against them.

According to ThinkProgress, in the case of People vs. Tom, Richard Tom was charged with vehicular manslaughter after allegedly driving well over the speed limit and crashing into a car carrying a woman and her two children. The woman’s eight-year-old daughter was killed and her 10-year-old was taken to the hospital to be treated for serious injuries.

Shortly after the crash, Tom was placed in the back of a police car and was not formally arrested and advised of his rights until much later in the day. Tom was eventually convicted of felony manslaughter and sentenced to seven years in jail. In a 4-3 ruling, the Court said Tom needed to explicitly assert his right to remain silent, before he was read his Miranda rights, in order for his silence to be inadmissible as evidence.

Throughout the trial, prosecutors continued to inform the jury that Tom’s failure to ask about the victims’ wellbeing following the collision—but before the officers read him his Miranda rights—signified that he was conscious of his own guilt. But how and when, exactly, was he supposed to invoke his Fifth Amendment right? As dissenting Justice Goodwin Liu pointed out, the decision implies that Tom should have approached an officer to inform them that he wanted to take advantage of his right to remain silent before he could remain silent.

The California Court’s decision will lead to a veritable catch-22 for Californians who come into contact with law enforcement officials. If they say anything at all, their words may be used against them, but if they don’t say anything before they are advised of their rights, that may be used against them as well. Only an individual with a lawyer’s nuanced understanding of the law would understand when and how to express their desire to remain silent. Considering that most people do not have the legal savvy of an attorney, individuals who have run-ins with the police could very well wind up incriminating themselves by not saying anything at all.

It seems as though the rights of citizens across the country are slowly being chipped away by overzealous prosecution tactics and court rulings. In a recent DUI case that reached the Maryland Court of Appeals, which we reported on in June, the court ultimately decided that being denied one’s Sixth Amendment right to counsel does not prevent the Department of Motor Vehicles from suspending one’s driver’s license, in this instance for a DUI charge.

Another dangerous side effect of the California ruling involves perverse incentives, whereby officers delay the reading of a suspect’s Miranda rights so that the suspect’s silence may indeed be used against them later in a court of law. The ruling may not completely abolish an individual’s right to remain silent, but it certainly alters it. In the court’s view, the right to remain silent is rather a privilege that must be timely and unambiguously invoked. Lawyers may understand the difference, but what about everyone else?

As a firm dedicated to protecting the rights of the accused, our law office finds it concerning that a suspect’s words or the lack thereof could potentially be used as evidence of guilt in a court of law. We will continue fighting to protect individuals who are victimized by the criminal justice system.