The law remains clear that neither the prosecution nor the courts may use a defendant’s silence against him, for any purpose, after he has expressly invoked the right to remain silent, regardless of whether he has been arrested or received formal Miranda warnings.
In a 5-4 split decision, just over a year ago, the United States Supreme Court, in Salinas v. Texas, ruled that where a suspect selectively answered only some of the pre-arrest questions by police, the prosecution could use the suspect’s failure to answer the other questions as evidence against him, unless he had expressly invoked his Fifth Amendment privilege against self-incrimination.
On August 14, 2014, the California Supreme Court, in a controversial 4-3 decision, expanded the Salinas rule and held that even after a defendant has been arrested, his silence can be used against him unless and until he expressly invokes his right to remain silent. The case in question is People v. Tom.
Several federal courts have previously rejected this position, but they may be re-examined after Salinas.
People v. Tom involved a vehicular manslaughter case, in which the prosecution argued that the defendant’s failure to inquire after the well-being of the people in the other car was evidence of his own guilt. The opinion has already drawn criticism.
One of the problems with the California approach is that it provides police with an incentive to delay informing suspects about their rights, in order to place them in a Catch-22 position of being damned if they speak and damned if they don’t.
In Colorado, regardless of whether evidence is precluded by the constitution, it must still pass muster on general grounds of relevance, balanced against unfair prejudice, so it is far from clear that he evidence would have been admitted here in any event.
Still, the case is indicative of a growing trend in the courts which holds that citizens must know their constitutional rights and expressly invoke them before they will be honored.