January 2, 2015

In People v. Tom, the Supreme Court of California Extends Salinas v. Texas to Allow Post-Arrest, Pre-Miranda Silence to be Consciousness of Guilt, part 3.

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In the first blog post the Salinas v. Texas decision and "consciousness of guilt" was discussed. In the second blog post, the facts of the People v. Tom case were discussed, and the prosecutor's arguments.

In this blog post we will discuss the reasoning behind the majority decision. This was a difficult post to write, because I do not support the majority decision's logic. DUIs often involve people that were never expected to be in the criminal justice system. When they are, it often involves an education into how criminal law works, as well as what law enforcement can and can not do. The Bill of Rights (the first Ten Amendments to the Constitution) are supposed to be intuitive- just like those magical words by Thomas Jefferson in the Declaration of Independence, "we hold these truths to be self-evident."

But people do not understand their rights- as written about , we are becoming a two class society- those that know their rights, and those that do not. The decision in People v. Tom leads us further down unfortunate road and the reasoning is less intuitive than what triggers Miranda rights. Who will know that an arrestee needs to speak up, and speak up the right way, in order to exercise their right not to incriminate themselves?

How can the California Supreme Court punish an arrestee (still not guilty) for keeping quiet? They approach the decision from the point of view of the State, and law enforcement. While Constitutional rights belong to the individual, the People, represented by prosecutors and law enforcement, have rights too. Specifically, the People have the right to "everyone's testimony." There are only exceptions to the People's right to testimony, and one of those exceptions is the Fifth Amendment for a citizen not to incriminate himself.

As previously discussed, the Fifth Amendment is not the popularly conceived "Right to Remain Silent"- only not to incriminate oneself. The primary interest protected is against a false confession, which is protected by the right to have counsel present during questioning, and Miranda rights when a suspect is questioned in custody. The two work in tandem- Miranda informs the individual of his rights to ensure that any further questioning (or confessions) are voluntary. Part of Miranda is to insure that the arrestee knows his right to counsel and to remain silent.

The California Supreme Court quotes the U.S. Supreme Court in People v. Salinas that "[t]he privilege against self-incrimination 'is an exception to the general principle that the Government has the right to everyone's testimony.' This puts law enforcement on notice that the silence is on purpose, and not being done to think of a good lie, because they are overwhelmed with guilt, or some other nefarious reason.

Also, when someone else exercises their right not to incriminate themselves, law enforcement has the option to make a deal, or to question the individual about something else. For instance, John Smith will not answer questions about where he got the car stereo, but if he is offered immunity for his role, perhaps he will testify about theft ring he is a member of.

From the Supreme Court decision, Salinas v. Texas, the California Supreme Court considers that while out of custody Salinas' silence was used against him, and that if he wanted to remain silent for constitutional protection purposes he would clearly and unambiguously communicate it. From there, it is only a small step to allow Tom's silence, in custody but prior to being Mirandized, as fair game for the People in there case in chief.

The People, after all, are entitled to everyone's testimony, even if that testimony is silence.

In the last and final blog entry in this series, we will discuss the dissent of Justice Liu, who expertly discusses the logical and intuitive problems with the Tom decision.


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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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