Post Arrest Pre-Miranda Silence

by Charles Gillingham

Post Arrest Pre-Miranda Silence
Can it be used in trial? The California Supreme court says "Yes!"


If you follow the legal update you will recall a couple of cases that were reviewed previously. In Berghuis v. Thompkins (2010) 560 U.S. 370, the U.S. Supreme Court held that an accused must unambiguously invoke the right to remain silent. Silence is not sufficient nor is an ambiguous invocation. The Court brought the objective test that has been in place when one invokes the right to an attorney to the request to remain silent. The Court further clarified that if the invocation is not express, officers have the right to clarify what the suspect meant and then continue questioning if the invocation is not clear.

In Salinas v. Texas (2013) 133 S. Ct. 2174, a suspect in a homicide was questioned in a non-custodial setting and was not given his Miranda warnings. During the course of the interview he chose not to answer some potentially incriminating questions. Salinas did not testify at trial but the court allowed the interview, and the lack of answers, into evidence to show consciousness of guilt. The court held that because the suspect "did not assert his fifth amendment privilege" the evidence was admissible against him.

The court in both cases was concerned about the difficulty police officers face with ambiguous invocations. The Court sought to give guidance to officers in both of these situations that an unambiguous invocation is the only circumstance where a suspect effectively invokes the right to silence. California has taken this line of cases a bit farther.

Post Arrest/Pre Miranda Silence

In People v. Tom (2014) 59 Cal.4th 1210, Tom broadsided a car at high speed and killed the driver, the driver's daughter, and seriously injured another child. Tom had been drinking. The question at trial was at what speed Tom was travelling and the evidence showed he did not brake prior to the crash. The issue the California Supreme Court addressed, however, was that upon his arrest, while in custody, but prior to his Miranda warnings, Tom addressed no concern about the well being of the other people in the collision. He never inquired as to the occupants of the other car, whether they were okay, whether they were injured or at any point evidence of any worry for their well-being. At that point, there was no interrogation. The trial court allowed the prosecution to put the lack of concern in evidence and argue that it showed a consciousness of guilt.

The issue on appeal was whether the Fifth Amendment was violated when evidence of the defendant's silence after arrest but before Miranda was allowed in evidence.

The California Supreme Court analyzed Berghuis and Salinas and found that Tom did not invoke the Fifth Amendment privilege by remaining silent. The Court also found that interrogation had not begun. Because there was no interrogation and because Tom did not expressly request the right to remain silent, the evidence was admissible. In reading this case, it is clear that all of the officers, responders, detectives and investigators did an excellent job of being aware of the issues and documenting the suspects demeanor and manner and what he did, and in this instance, did not say.