Elias writes: "Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect's refusal to talk before invoking 5th Amendment rights against self-incrimination."



The right to remain silent ... can and will be... (photo: ACLU)

California Supreme Court: Silence Can Be Used Against Suspects

By Paul Elias, Associated Press

he California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.

Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.

Prosecutors repeatedly told jurors during the trial that Tom's failure to ask about the victims immediately after the crash but before police read him his so-called Miranda rights showed his guilt.

Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect's refusal to talk before invoking 5th Amendment rights against self-incrimination.

"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 petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal.

"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 state 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 — for the silence to be inadmissible in court.

Tom has been freed on $300,000 bail pending his appeal.

Tom was arrested after his Mercedes sedan plowed into a car driven by Lorraine Wong, who was turning left onto a busy street.

Prosecutors argue that Tom's car was speeding at 67 mph in a 35 mph zone when the collision occurred. He was placed in the back of a police cruiser but was not officially arrested and advised of his rights until later in the day.

Prosecutors said Tom's failure to ask about the Wong family while detained showed his guilt.

Justice Goodwin Liu dissented.

"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," Liu wrote.

The ACLU filed a friend of the court brief supporting Tom's appeal.

Fischer and others say the ruling might not be the last word on the issue.

The high court ordered the court of appeal to reconsider the case, meaning it could return to the California Supreme Court.

The high court is undergoing a dramatic transition and it's possible that two new justices would reconsider the ruling.

Baxter, a Republican appointee and reliable conservative vote on the court, is retiring in January.

Meanwhile, Gov. Jerry Brown recently nominated Stanford University law professor Mariano-Florentino Cuéllar to fill a vacancy.

"This could be the last hurrah for a conservative Supreme Court," appellate lawyer Jon Eisenberg said.