Court: Silence Can Be Used Against Suspects

AP ^ | Aug 15, 2014 | PAUL ELIAS

[Jet Jaguar]

The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.

Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.

Prosecutors repeatedly told jurors during the trial that Tom's failure to ask about the victims immediately after the crash but before police read him his so-called Miranda rights showed his guilt.

[OneWingedShark]

Thank you.

[Lazamataz]

Something I’ve seen courts rule in the past is that piece of evidence X, while improperly admitted, was not sufficient cause to overturn the conviction because it was only one small piece of the puzzle, and the case did not rest on it. I think that is what should have been done this time - say using the defendant’s silence was wrong, but not critical enough to overturn the conviction.

That would have been a ruling that is amenable to the Bill of Rights.

[OneWingedShark]

You folks are thinking that this guy was found guilty because of his silence. I’d say that the conviction was because of the facts. He did have a drunken blood/alcohol level, he was the driver of the car, he did kill the little girl and injure her mother and sister.

There is ZERO dispute about those facts. Zero.

The point I am raising is that to use silence as a means to even contribute to a guilty verdict is morally reprehensible because of the inherent injustice.
See Posts: #150, #163, #168.

[Lazamataz]

I have yet to see a single poster give me a valid constitutional argument for his silence prior to being given his Miranda warning as violative of the original intent of the first amendment.

Nor will you. Silence in the face of the law is not violative of the First Amendment -- which, by the by, we are not discussing -- nor is it violative of the Fifth Amendment.

However, and I believe OneWingedShark laid out the logical argument well, other posters have shown you that the introduction of this fact as presumptive of guilt IS violative of the Fifth Amendment.

That you claim to have not seen it, is not our problem -- nor is it our problem if you cannot (or will not) comprehend it.

[OneWingedShark]

Aye — I too miss it.

[Lazamataz]

Aye — I too miss it.

How about a colony on Mars? Far enough away from Earth that they would need time to interfere -- like America and Britain in the 1700's -- and we could set up a free nation again. I'm in for 20 bucks. :)

[xzins]

What the prosecutor did was, in her closing argument, wonder why Tom never asked if the folks in the other car were injured. Near as I can tell, that's it.

I also found that in the civil trial that Tom lost and the injured family was awarded 7 million+ dollars. All that Tom has contested is a portion of about 150 grand that his insurance company has already paid. (He's well-heeled apparently. He hit them with a Mercedes.)

Prosecutors and civil attorneys said Tom broadsided the Ng family’s Nissan Maxima with his 2006 Mercedes Benz just after 8 p.m. as it made its way across Woodside Road on Santa Clara Avenue, killing Ng and hospitalizing the two others. Wong suffered a fractured rib, hip injuries and facial burns and bruises. Her daughter broke and arm and had cuts on her face.

Hours after the crash, Tom’s alcohol level measured .04 percent. Using scientific rates of alcohol processing, the prosecution contended Tom was over the legal limit at the time of the accident. However, the jury acquitted Tom of gross vehicular manslaughter due to intoxication and driving while under the influence.

During his trial, Tom was originally free from custody but taken back in when the alcohol-monitoring bracelet required by his bail indicated the presence of alcohol and it appeared Tom wrapped the monitor in saran wrap. After his conviction was overturned, Tom was granted $300,000 bail while waiting to learn if he’ll be retried and is free from custody.

The court in question is the California State Supreme Court and not the US Supreme Court. This might get appealed to them.

The state Supreme Court in a 4-3 ruling said Tom needed to explicitly assert his right to remain silent - before he was read his Miranda rights - for the silence to be inadmissible in court.

Tom has been freed on $300,000 bail pending his appeal.

Tom was arrested after his Mercedes sedan plowed into a car driven by Lorraine Wong, who was turning left onto a busy street.

Prosecutors argue that Tom's car was speeding at 67 mph in a 35 mph zone when the collision occurred. He was placed in the back of a police cruiser but was not officially arrested and advised of his rights until later in the day.

Prosecutors said Tom's failure to ask about the Wong family while detained showed his guilt.

So, this isn't really about his "right to remain silent". This is about the state of mind of someone who didn't think to ask how the people he hit were doing. No one was trying to question him, and refused to allow him to remain silent, so took his silence against him. This is about a guy who just smashed someone else's car and didn't ask how the other folks were, and the prosecutor wonders in closing why a person wouldn't ask how the people in the other car were doing.

I've got admit that sounds odd. This from the man who wrapped his alcohol monitoring device in saran wrap so it would give a reading that he was again drinking.

If you were out hunting with Dick Cheney and he accidentally shot you, but never asked how you were doing, what would that mean? Is my asking that question violating his right to remain silent?

[Lazamataz]

What the prosecutor did was, in her closing argument, wonder why Tom never asked if the folks in the other car were injured. Near as I can tell, that's it.

His defense attorney may have blown it. He or she should have objected (if it is even possible to object in the closing argument, I am not sure it is).

So, this isn't really about his "right to remain silent". This is about the state of mind of someone who didn't think to ask how the people he hit were doing.

Actually, it is about his right to remain silent and not have his silence used against him. To consider speaking OR silence presumptive of guilt, makes it impossible for a suspect to win. That is not the legal world in which I want to live!

If you were out hunting with Dick Cheney and he accidentally shot you, but never asked how you were doing, what would that mean?

It would mean he spoke to a lawyer who advised him well.

Is my asking that question violating his right to remain silent?

It is if you use it to demonstrate the 'guilty mind'.

[Charles H. (The_r0nin)]

It would appear that most of the Freepers on this thread are in judicial communion with Ginsberg, Breyer, Sotomayor and Kagan.

As soon as you begin the ad hominem and guilt by association, all it does is confirm you have no case. If you had one, you wouldn't need to pound the table...

[Lazamataz]

Well done. I missed that table-pound by P-Marlowe.

I suspect, perhaps incorrectly, he's a prosecution attorney and wants this new cudgel.

[OneWingedShark]

I have yet to see a single poster give me a valid constitutional argument for his silence prior to being given his Miranda warning as violative of the original intent of the first amendment.

And here I thought the following posts did raise Constitutional argument: #150, #163, #168.

It was evidence of his behavior and his mental state. It was the nail in the coffin to prove that he really had no concern for either his possible victims while driving the car drunk, or the actual victims that he killed and maimed.

So it [his silence] was then made to testify against him in a court of law.
This is violative of both the spirit and letter of the 5th amendment which declares: nor shall [a person] be compelled in any criminal case to be a witness against himself.

Amazingly I suspect that if this thread were over on DU or some liberal site, that I would get the same arguments from the liberal posters over there that I have been getting from the Conservatives here, i.e., that this man’s CONSTITUTIONAL RIGHTS were violated by the evil prosecutors.

This is because they have a drive for Justice, granted it is oft twisted to evil ends, but the point is that the seed of it, a desire for Justice, remains.

What a bunch of malarkey. He violated some 8 year old girl’s right to life. He should not be given the benefit of the doubt as to whether his silence was the exercise of some right or an attempt to shield himself from the consequences of his actions.

Bullshit!
The seriousness of the charge is not grounds to shred the Constitution's guarantees!
In fact, it is all the more reason to ensure that the guarantees are upheld!

If the Constitution only applies when convenient, then it is absolutely worthless — its whole purpose is to be inconvenient to government so as to ensure that rights are honored.

Do you remember Waco, TX?
Do you remember how, when questions of the appropriateness and lawfulness of the government's actions came up, they trotted out charges of pedophilia?
Do you remember that the whole incident sprang from a taxation issue/dispute with the ATF, which could have and should should have been resolved in civil court w/o the need for armed confrontation?
Do you remember that David Koresh walked into town nearly every day and could have thus been apprehended easily and w/o forcing a confrontation?

His silence in this case spoke volumes about his mental state at the time of the accident.

Really?
You categorically deny that someone could hold their peace because nothing they say could ever make things better?
Or that any such thing said would be wholly inadequate to assuage the grief of the bereaved?

You don’t incriminate yourself when you show compassion for the dying victims in a car wreck that you caused.

But you do when you keep yourself from speaking?
I wasn't aware that funerals had so many incriminating moments, as a moment of silence is fairly common therein.
Thank you for illuminating the pure simplicity of human motivation and mindset, I feel so enlightened now! [/sarc]

However it is clear that you do incriminate yourself when you callously ignore their plight and think only of yourself and button your lip to the point where you clearly show no concern for anyone other than yourself.

Ah, so now prioritizing one's own life because it is one's own is guilt?
I had no idea you had such progressive leanings!
Moreover, by bringing this assertion you accuse the man's own character; would you allow him to mount a defense introducing days and days of volunteer work into evidence? No, because it is not germane to the case — yet on this very subject you ascribe to him a generally bad character and use that to convict him.

Reprehensible.
Violative of the spirit of the 6th Amendment.
Violative of the text of the 5th Amendment.

[Lazamataz]

I don’t think he WANTS to get it.

[OneWingedShark]

How about a colony on Mars? Far enough away from Earth that they would need time to interfere -- like America and Britain in the 1700's -- and we could set up a free nation again. I'm in for 20 bucks. :)

There's a flaw in this plan.

[P-Marlowe]

the introduction of this fact as presumptive of guilt IS violative of the Fifth Amendment.

It was used as evidence of a single element of a crime. Now explain to me how this is in violation of the meaning and intent of the fifth amendment. Not as written by Earl Warren, but by James Madison and the founders.

[Lazamataz]

We will not explain the same thing to you over and over. Read, counselor, and comprehend.

Or not. No skin off my knuckles. Just do me the favor of indicating the state in which you practice so I can be assured I am unlikely to ever hire you, if I should ever need an attorney.

[Lazamataz]

P-Marlowe: It was used as evidence of a single element of a crime. Now explain to me how this is in violation of the meaning and intent of the fifth amendment. Not as written by Earl Warren, but by James Madison and the founders.

My suspicion is confirmed. He does not want to get it.

[OneWingedShark]

>> the introduction of this fact as presumptive of guilt IS violative of the Fifth Amendment.
>
> It was used as evidence of a single element of a crime.

witness:
verb (used with object)
1. to see, hear, or know by personal presence and perception: to witness an accident.
2. to be present at (an occurrence) as a formal witness, spectator, bystander, etc.: She witnessed our wedding.
3. to bear witness to; testify to; give or afford evidence of.
4. to attest by one's signature: He witnessed her will.
verb (used without object)
5. to bear witness; testify; give or afford evidence.

It was used as evidence of a single element of a crime.
It was used as evidence

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It, his silence, was used to witness against him in a criminal case and there was no way he could keep it from happening.

Do you get it now?
If not, mouse-over the dotted underlined phrases.

[OneWingedShark]

> My suspicion is confirmed. He does not want to get it.

I believe you are right.

[xzins]

See #187. Should have pinged you.

[mware]

Silence was used against Thomas More.