You do not have the right to remain silent, according to the California Supreme Court in its decision last week of The People v. Tom.

Read the Decision: The People vs. Tom, In The Supreme Court Of California, Docket Number S202107, August 14, 2014

In Miranda vArizona (1966), the Supreme Court ruled that detained criminal suspects, prior to police questioning, must be informed of their constitutional right to an attorney and against self-incrimination.

Richard Tom was speeding.  He had a couple drinks prior to driving, not a lot but some.  He then slammed into another vehicle killing a child.  Although some of the issues were in dispute, there was no dispute that Tom sat silently in the police car after the accident while the officers investigated.  Lots of reasons there not to have a good feeling about Mr. Tom, but probably not significant enough for the system to ignore commonly understood constitutional principles. (Miranda Warning) The prosecutor, however, successfully used the evidence of silence against Tom at trial, claiming that it showed a complete lack of remorse or care on his part, since he wasn’t asking for updates on the occupants of the other vehicle.  A judge, not surprisingly, bought it.  Tom was convicted and sentenced to 7 years in prison.  Of course Tom argued he had a right to remain silent and that silence could not be used against him.  The California Supreme Court felt otherwise and his conviction remains.

You Have the Right – Origin of Miranda Rights on YouTube – The History of this basic right.

A U.S. citizen has a fundamental/basic right not to be compelled to be a witness against himself in a criminal prosecution.  That's really all there is in the 5th Amendment on this issue.  Because of the famous Miranda warnings which must be given to a suspect prior to a custodial interrogation, the first being "you have the right to remain silent", we all believe we have a constitutional right to be silent at all times without punishment or repercussion, which is not the case according to the California court.  We all probably know this “right” more than any other.

Even children know how to recite the Miranda Rights

“After 44 years, the Miranda decision stands as a monolith in police procedure. Its requirements are so well known that the Supreme Court remarked, "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." And, although the Supreme Court has clarified and refined Miranda over the years, its central requirements are clear. Whenever the prosecution seeks in its direct case to introduce a statement made by a suspect while in custody and in response to interrogation, it must prove that the subject was warned of specific rights and voluntarily waived those rights. The penalty imposed on the prosecution for failing to prove that the Miranda procedures were properly followed is harsh. While some secondary and limited uses of statements obtained in violation of Miranda are permitted, such statements are presumed to be coerced and cannot be introduced by the prosecution in its direct case., By Carl A. Benoit, J.D. from the FBI Law Enforcement Bulletin titled The “Public Safety” Exception to Miranda.”

The Tom decision is 63 pages long, but as far as I can tell this is their reasoning: the Miranda decision from 48 years ago says you have the right to be silent and refuse to answer questions only when subject to a custodial interrogation.  Outside of that, the 5th amendment right doesn't apply because the officers are not attempting to force you to talk. 

This means that the "right to remain silent" is illusory and doesn't exist in the way that mainstream society believes that it does.  If you are silent, it can be evidence of guilt, so long as it’s not during a custodial interrogation.  To be clear, you always have the ability to remain silent, and by doing so you run the risk that it may be used against you in a criminal prosecution.  If you are in custody and being questioned, your silence still cannot be used against you, and they cannot compel you to answer questions (although they will try, and that effort may be in violation of your rights).  But if you are not both in custody and being questioned, silence can be used against you in ways that you’ll never be able to imagine.  Prosecutors are trained at using facts to get convictions, juries are too eager to convict, and judges are uneasy in letting those convicted to go free.

If the Tom case would’ve been in Iowa, there are some criminal procedural rules that could have prevented his unfortunate fate based upon his silence, if his attorney had argued them.

The California Supreme Court spent a considerable amount of time explaining that in order for Mr. Tom to have enjoyed his right to remain silent, he needed to start telling people that he was going to remain silent.  They then set forth a complicated and unworkable burden on an accused person, requiring acts which are too detailed and confusing to set forth here, resulting in a system that ignores constitutional due process and other procedural considerations.  Tom needed a crystal ball, and a dang good lawyer with a thorough understanding of criminal constitutional law, sitting next to him to explain his rights to him in real time as it was occurring.

Every case has its own unique set of facts.  Over the past 48 years since the Miranda decision, there are hundreds of cases dealing with these types of issues.  With a thorough understanding of those cases, a lawyer discovers that this area of the law is much more complicated than determining whether Miranda rights were read to someone after their arrest.  But because these cases are complicated and diverse, they do provide ammunition for a lawyer to argue that your 5th Amendment rights have been violated and that no conviction should result.

Todd A. Miler
Attorney at Law
1300 37th Street, Suite 6
West Des Moines, IA 50266

Resources for understanding this 1966 criminal procedures case.

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