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Name: People v. Tom
Case #: S202107
Court: CA Supreme Court
District CalSup
Opinion Date: 08/14/2014

A suspect who has not been subjected to custodial interrogation must clearly and timely invoke his Fifth Amendment privilege against self-incrimination to bar use of his postarrest, pre-Miranda silence in the prosecution’s case-in-chief. Tom was speeding down a street and broadsided another car that was making a left turn in front of him. One person in the other car was killed and two others were severely injured. He was arrested after several officers smelled alcohol on his breath. At trial in its case-in-chief, the prosecution relied on evidence that Tom failed to inquire about the welfare of the occupants of the other car after the accident as evidence of his guilt. Tom was convicted of gross vehicular manslaughter and an allegation that he inflicted great bodily injury was found true. The Court of Appeal reversed the conviction, finding that the use of Tom’s postarrest, pre-Miranda silence violated his Fifth Amendment rights. The prosecution’s petition for review was granted. Held: Reversed. The issue of whether the Fifth Amendment bars the government from offering evidence in its case-in-chief of a defendant’s postarrest, pre-Miranda silence in the absence of custodial interrogation has not been decided by the California Supreme Court or the United States Supreme Court, and there is a split of authority on the issue in the federal circuits and among other state courts. The court declined to decide the issue in this case. After discussing the holdings in a number of cases, the court held that a defendant who wishes to bar use of postarrest, pre-Miranda silence that occurs in the absence of custodial interrogation must clearly and timely invoke the Fifth Amendment privilege; it is not self-executing. The threshold inquiry is “whether a reasonable police officer in the circumstances would understand that the defendant had invoked the privilege either at or prior to the silence at issue.” The exception to the objective invocation rule that applies when a suspect is subjected to custodial interrogation without Miranda warnings does not apply when a suspect is merely arrested, but not interrogated. The case was remanded to allow the Court of Appeal to determine whether Tom clearly invoked his Fifth Amendment privilege and, if presented with the issue, whether Tom’s postarrest, pre-Miranda silence was admissible under the Evidence Code. [Editor’s Note: Justices Werdegar, Liu and Rylaarsdam dissented.]