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Post-Arrest, Pre-Miranda Silence Can Be Used Against You: Calif. Sup. Ct.

By Mark Wilson, Esq. on August 21, 2014 | Last updated on March 21, 2019

Richard Tom crashed into a car in 2007 and killed one of the occupants. He was tried and convicted of manslaughter. As part of its case, the prosecution brought up the fact that Tom hadn't once inquired about the other car's passengers at the scene of the accident. Though Tom didn't bring the Fifth Amendment self-incrimination issue up on appeal, the Court of Appeal did, and reversed his conviction.

So, was Tom's Fifth Amendment privilege violated when the trial court admitted evidence that he "failed to inquire about the welfare of the occupants of the other vehicle"? Yes, said the Supreme Court in a 4-3 decision.

Majority: No Fifth Amendment Violation

A suspect has to affirmatively invoke the Fifth Amendment right before it applies post-arrest, post-Miranda. No one disputes that Tom was basically arrested at the scene of the accident in the sense that he wasn't free to leave, but he hadn't been Mirandized yet. What about a defendant's post-arrest, pre-Miranda silence?

Relying chiefly on the fractured U.S. Supreme Court opinion in Salinas v. Texas, the majority found that Tom did have to affirmatively invoke the right for the same policy reasons that govern invoking the Fifth Amendment after being Mirandized. These policy reasons focus on notice to the government as to what the suspect will testify about and providing guidance to police. "Without clear notice a suspect has invoked the privilege, the police would be deprived of the opportunity to cure any potential self-incrimination through a grant of immunity," wrote Justice Marvin Baxter. (Because making sure immunity is doled out correctly is really what police are concerned about.)

Two Dissents

Justice Kathryn Werdegar dissented -- but only because she thought the court should have avoided the issue altogether. Because Tom never made a specific objection on this issue, she believed it should have been forfeited long ago.

Justice Goodwin Liu dissented on the merits. How bizarre, he said, that a suspect should be required to affirmatively invoke his right against self-incrimination before being subjected to custodial interrogation. A suspect is supposed to invoke his right to remain silent ... when, exactly?

"Was he required to approach an officer on his own initiative and blurt out, 'I don't want to talk'?" Liu wrote. "Would it have been enough for Tom to say just that, without mentioning the Fifth Amendment or otherwise indicating he didn't want to incriminate himself? And if so, how would that have been materially different from simply remaining silent? Moreover, why should it matter whether Tom invoked the privilege to a police officer? What purpose would that have served, since no police officer was trying to question him?"

The majority's decision, as Justice Liu observes, "create[s] an incentive for arresting officers to delay interrogation in order to create an intervening 'silence' that could then be used against the defendant." Prosecutors can now essentially use any silence, at any time, against the suspect unless the suspect pipes up to say he's clamming up. That doesn't make for a clear rule and it doesn't help anybody -- except prosecutors.

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