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You have the right to remain silent . . . sort of . . . .

Posted by Lynn Gorelick | Sep 22, 2014 | 0 Comments

One of the most fundamental rights in the United States, as enshrined in the Fifth Amendment to the Constitution says (in part) that no individual “shall be compelled in any criminal case to be a witness against himself . . . ”  What's more, this right against self-incrimination not only applies during a trial, but also while being questioned and/or interrogated.  In other words, once someone is under arrest, they have the right to remain silent and not incriminate themselves.

Well, sort of . . .

Despite the undisputed fact that these rights are guaranteed by the U.S. Constitution, it seems the California Supreme Court has a different point-of-view.  In a 4-3 opinion that was issued in August 2014, the Court declared that the right is not automatic, that unless the police specifically advise you of your right to remain silent (i.e.: your “Miranda rights”), you must unambiguously declare that you are invoking your Fifth Amendment right to remain silent.  If you don't, your silence may be used against you to show a conscious awareness of your guilt.  (People v. Tom, Calif. Supreme Court Docket No. S202107).  Yes, that's right:  you have to talk in California in order to be protected by the Fifth Amendment right to remain silent!

Think that's “crazy talk”?  Well, Justice Liu wrote a dissenting opinion saying as much, and two more Justices agreed.  As Lui points out, “the Miranda warnings are not themselves the source of the rights stated in the warnings. The warnings are a means of giving effect to the rights that are already operative when the police initiate custodial interrogation.”

How the four Justices in the majority think that makes sense is another issue entirely.

Let's say that the police someone on suspicion of driving under the influence.  Knowing he has the right to remain silent, he says nothing.  On the way to jail he says nothing. He is not Mirandized until he gets to the jail, if at all (police often don't Mirandize DUI suspects because they do all of their questioning on the side of the road when the accused is supposedly being investigated, not interrogated).  Now, what if the prosecutor says to the jury, “Why didn't the Defendant say, ‘the roadside breath test results must be wrong, I only had one beer!?'  Instead, he didn't say a word because he knew he was guilty.  He knew he had more than one beer.”   So knowing you have the right to remain silent is no longer enough.  According to the State of California, in order to actually have the right to remain silent, you must respectfully say to the police, “I invoke my Fourth, Fifth, and Sixth Amendment rights.”  Then say nothing.

About the Author

Lynn Gorelick

Lynn Gorelick has been an attorney for over 36 years. She is the Attorney Lynn Gorelick is the Immediate Past President of the California DUI Lawyers Association and a Faculty and Sustaining member of the National College of DUI Defense. Lynn is a Specialist Member of the California DUI Lawyers Association and lectures frequently to other attorneys regarding DUI and DMV issues.


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