silentThe California Supreme Court has ruled that the silence of a suspect can be used to insinuate guilt.  The court, sharply divided, ruled in a vehicular manslaughter case that it was not improper for prosecutors to say in closing arguments that the defendant’s silence implied guilt.  Richard Tom’s conviction was reinstated.  Tom’s was accused in a 2007 San Francisco Bay Area crash that killed an 8-year-old girl.  He was sentenced to 7 years in prison after authorities said he was speeding when he slammed into another vehicle carrying a mother and her two daughters at an intersection.  Prosecutors repeatedly told jurors during the trial that Tom’s failure to ask about the victims’ well-being after the crash, but before he was read his Miranda rights showed guilt.

Legal analysts and critics said the ruling could allow prosecutors to exploit a suspect’s refusal to talk before their told they are allowed to invoke their 5th Amendment rights.

“It’s a bad and questionable decision,” said Dennis Fischer, a longtime criminal appellate lawyer.

Tom’s attorney Marc Zilversmit said he is deciding whether to appeal to the U.S. Supreme Court.

“It’s a very dangerous ruling,” Zilversmit said, “If you say anything to the police, that can be used against you. Now, if you don’t say anything before you are warned of your rights, that too can be used against you.”

The California 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 in order for his silence to be inadmissible.  Prosecutors said that Tom was going 67 in a 35 mph zone when he collided into Lorraine Wong’s car.  He was placed in a police cruiser, but not arrested or advised of his rights.  According to prosecutors, his failure to ask about those he crashed into showed his guilt.

Justice Goodwin Liu wrote the dissenting opinion, “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.”

The ACLU had filed a friend of the court brief in support of Tom’s appeal.

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