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

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."

This case and the resulting California Supreme Court ruling are appalling for different reasons.

After Tom drove his Mercedes at high speed into the other car killing the young girl, local police went to his friend’s house—retired San Francisco Police Officer Peter Gamino—who, according to the decision’s recitation of the facts, claimed that he and Tom had not been drinking, even though a large bottle of vodka was on the kitchen table and two-thirds empty. So we can point to someone who was trusted to enforce the law—and should have stopped an old friend from driving drunk—for contributing to the weakening of constitutional protections for citizens.

Then there’s the continuing trend at the U.S. Supreme Court where, given the opportunity to assert and consolidate state police power, the right-wing majority will do so—as shown in the Salinas v. Texas ruling. Meanwhile, in California, it appears there also are few winners in this decision apart from granting police and prosecutors more power for obtaining convictions.

“The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent,” California Supreme Court Justice Goodwin Liu wrote in his reasoned dissent. Justice William Rylaarsdam concurred. Justice Kathryn Werdegar dissented separately, saying she agreed with Liu’s analysis, but that the court should not have even taken the case.

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