criminal law, CaliforniaDuring my almost 20 years of practicing criminal defense, many clients and prospective clients always believe they have a good defense since the arresting police officer failed to read them their Miranda rights.  Sometimes such a failure by an arresting officer or sheriff’s deputy can lead to the suppression of an incriminating statement.  However, in California, the recent California Supreme Court decision of People v. Tom has gone to further abrogate a person’s Fifth Amendment rights and has allowed a prosecutor to argue that silence is a form of self-incrimination.  As discussed below, our Miranda rights are slowing being abrogated but there are certain things and statements one can make which will still allow a competent criminal defense attorney to use the Miranda case to successfully defend criminal charges whether the case may be a murder charge or a DUI charge.

1.       Miranda v. Arizona

 In Miranda v. Arizona (1966) 384 U.S. 436, 444, 16 L.Ed2d 694, 86 Sct. 1602, the United States Supreme Court held that, “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”  A person charged with a crime  may waive his or her Miranda rights, provided the waiver is made voluntarily, knowingly and intelligently.  Miranda v. Arizona (1966) 384 U.S. 436, 444, 16 L.Ed2d 694, 86 Sct. 1602.    It is the prosecution’s burden to demonstrate the voluntariness of a confession by a preponderance of the evidence.” See the United States Supreme Court Lego v. Tworney (1972) 404 U.S. 477, 489 [92 S.Ct. 619, 626, 30 L.Ed.2d 618]

The determination of whether a waiver is “voluntary” is a separate determination from the question whether a waiver is “knowing” and “intelligent.”  The court must decide (1) whether the defendant made a free and deliberate choice to waive his rights and was not compelled to do so through police intimidation; and (2) whether the defendant waived his rights with full awareness both of the nature of the right being abandoned, and the consequences of his decision to abandon that right.  See the United States Supreme Court case Colorado v. Spring (1987) 479 U.S. 564, 573, 93 L.Ed2d 954, 107 S.Ct. 851.

Moreover, if a criminal suspect’s invocation of the right to remain silent is ambiguous, the police may “continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights.”  See People v.Johnson (1994) 512 U.S. 452, 461, [114 S.Ct. 2350, 2356.  The law of Miranda  is always being defined by Court of Appeals decisions in California and by the United States Supreme Court.  It is always a difficult question to determine whether there is a Miranda violation and one should always consult with an experienced criminal defense lawyer to determine how Miranda can be used to help a defense.

2.   People v. Tom and Salinas v. Texas

In Salinas v. Texas, the United States Supreme Court found that before an arrestee can rely on the privilege against self-incrimination, he is required to invoke it.  As such, under Salinas, if a person doesn’t say anything in response to being Mirandized, anything a person says or does not say can be used as evidence against them.  As such, it is always advisable, absent advise from a competent criminal defense attorney, to verbally exercise your right to remain silent.  It should be noted that Salinas does not require a criminal defendant to invoke his right not to testify at trial and does not apply to unlawful interrogations involving.

However, the California Supreme Court case of People v. Tom has gone even further than the United States Supreme Court and found that a person who is arrested must invoke their Fifth Amendment Right to remain silent even if their Miranda rights are not read to them by the police.  In Tom, a suspect was arrested for vehicular homicide and at the scene of the accident, when he was arrested, he did not ask about the condition of the victim but rather just told the officer he wanted to go.  After that statement, the defendant was silence.  At trial, the prosecutor argued and used that the fact of the defendant’s silence against him indicating silence showed a consciousness of guilt.  The California Supreme Court rule that an person under arrest must invoke his or her Fifth Amendment right to remain silent even in the absence of an officer reading an arrestee his or her Miranda rights.  The Court remanded the case back down to the trial court to determine if the defendant’s request to go home is considered an invocation of his right to remain silent.

The People v. Tom case will most likely be appealed to the United States Supreme Court but until there is a different ruling by the US Supreme Court, a person arrested for a crime in California whether it be in Los Angeles County, Orange, Riverside or any other county should always verbally convey to an officer or law enforcement official that they are invoking their right to remain silent whether the officer reads or does not read their rights pursuant to Miranda.