In August of 2014, the Supreme Court of California issued a 4-3 decision reversing an appellate court ruling and reinstating a felony conviction in the case of The People v. Tom. In that case, Richard Tom was involved in an automobile accident wherein he broadsided another vehicle while speeding, and caused the death of an eight year old child. Immediately following the accident, Mr. Tom elected to remain silent when confronted by the police even though he had not yet been read his Miranda Rights.

The Miranda Warning states in part that: “if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent” and that “the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.” Because Mr. Tom failed to make any statement or inquire about the condition of the injured parties at the time of the accident, prosecutors portrayed him as callous and reckless and used his silence as evidence of his guilt.

While the right to remain silent is an offshoot of the Fifth Amendment, Courts are beginning to interpret that right as one that must be verbally invoked before the protection applies, if the right is exercised prior to the reading of Miranda Rights. Put simply, the suspect has the burden of verbally invoking the right to remain silent by making a direct statement such as “I am invoking my right to remain silent now.” for protection of silence under the Fifth Amendment to be in effect. In absence of a specific and verbal statement, prosecutors may use that silence to portray the defendant as being heartless or even guilty of a crime.

This ruling does not remove the right to remain silent in California, but it does create a situation wherein ordinary citizens need to be educated about when and how the right can be used. A good rule of thumb to remember is that “the only way to safely remain silent is to speak first.”