You have the right to remain silent, but only if you say so

A recent decision rendered by the California Supreme Court in People v. Tom is indicative of profound separation between the lives of those Justices and those of us in the real world. In my practice, I frequently encounter clients complaining that their Miranda rights weren’t read to them with the belief that this fact will cause their case to be dismissed. That’s because regular people are not legal scholars and have a difficult time keeping up with the ever-changing nuance of criminal jurisprudence.

Now comes People v. Tom. Briefly, the case concerns an accident where Mr. Tom t-boned another vehicle causing injury. When contacted by the police, Mr. Tom never once asked about the well-being of the injured persons. In fact, he gave no statement at all. At trial, the district attorney claimed Mr. Tom’s silence was proof that he didn’t care about the injured persons and, was, therefore driving recklessly.   Mr. Tom was convicted.

It used to be that if a defendant refused to speak to officers, he was deemed to have invoked his right to remain silent pursuant to the 5th Amendment, and therefore his silence could not be used against him/her at trial. It is a fundamental right of every accused person to choose to not provide the state with evidence against him/her. Here, the Court held that if you choose to speak to the officers, your words can be used against you, however, if you choose to not speak, your silence can now be used against you.

The Court did offer one possible way your silence can be suppressed; if you say the magical words: “I invoke my right to remain silent pursuant to the 5th Amendment.”  Easy enough for lawyers, but one would be hard-pressed to find regular citizens who know enough about the constitution to invoke their rights properly. It’s bad enough that, under our system of justice, citizens are deemed to know our absurdly complicated penal code (not to mention tax code), but to also expect them, under the stressful conditions of arrest, to specifically invoke the 5th Amendment.

As a practical matter, if you are arrested, remember these magical words and also tell them you demand representation. And then call me.