If Police arrest you, you choose to remain silent, and Police do not Mirandize you... can your silence be used against you? Yep, per the California Supreme Court August 14, 2014 decision People v. Tom (2014, DJDAR 10881). Basically, you have the right to remain silent, but you must speak up if you wish to invoke that right, even post-arrest and pre-Miranda.
In Tom, Richard Tom was involved in a vehicle accident where an 8-year-old girl unfortunately passed away. The accident occurred around 8:20pm. Police drew Tom's blood at 11:13pm, for an estimated .04, but that was nearly 3 hours after he was driving. Tom "was held at the scene for approximately an hour and a half before he was placed into a patrol car and transported to the police station."
"Tom was not formally arrested until after he had been taken to the police station" although "the trial court ruled that he was under de facto arrest when Officer Price told him he was not free to leave the accident scene."
Allegations were made that Tom was speeding, did not break, and struck another car with the young girl inside. Officers first noticed an odor of alcohol around 10:30pm, which then two other officers miraculously noticed it too.
The People charged Tom with gross vehicular manslaughter while intoxicated, driving while under the influence with a .08 or greater BAC, and causing injury to another person. The jury acquitted Tom on the alcohol driving charges, but convicted him of gross vehicular manslaughter with gross negligence.
The main issue was with Tom’s silence, which was used therein against him. Police interrogated Tom for several hours, where he: 1) asked if he could go home – he lived a 1/2 block away – which was denied; 2) complained about an ankle injury; 3) expressed reluctance about going to the police station to have his blood drawn – but eventually agreed to go to the station; and 4) after what the Court determined to be a "de facto" arrest, asked whether he could refuse to have his blood drawn.
So through all of that, Tom never asked about the passengers in the other car, and the Prosecutor blew that up in closing argument: "defendant 'never, ever asked, hey, how are the people in the other car doing? Not once. . . . Now, you step on somebody's toe or you bump into someone accidentally, what is your first thing out of your mouth? Whoops. I'm sorry. I'm not saying that he has to say sorry as an expression of his guilt or as some kind of confession, but simply as an expression of his regret. Look, I'm sorry those people were hurt. Not once. Do you know how many officers that he had contact with that evening? Not a single one said that, hey, the defendant asked me how those people were doing. Why is that? Because he knew he had done a very, very, very bad thing, and he was scared. He was scared or—either that or too drunk to care.'"
Generally, you have the right--the privilege--to remain silent, but this privilege "is not self-executing" and "may not be relied upon unless it is invoked in a timely fashion." You must invoke this right "unambiguously" and "sufficiently clearly that a reasonable office in the circumstances would understand the statement to be a request for an attorney." It's an objective, instead of a subjective, standard.
You, the Defendant, have the burden to establish that you clearly invoked this privilege, although there are some exceptions (eg. government coercion).
"The objective invocation rule applies to defendant's post- arrest, pre-Miranda silence."
So, all of this applies to Tom, as "the Government has the right to everyone's testimony" which "unquestionably applies to the testimony by silence."
This was a 4-3 split decision, with a powerful dissent where Justice Lui. Justice Lui makes great points that this case gives Police the ability to take someone into custody, NOT ask questions to avoid invoking Miranda, but then use that silence against the accused.