Skip to Content

California Supreme Court Rules That Silence Can Be Evidence Of Guilt


The California Supreme Court has ruled that a suspect's silence may be used as evidence of guilt during jury trial. The facts of the case involved a motorist named Richard Tom who broadsided another vehicle while speeding in Redwood City. As a result of the collision the other motorist was killed and Mr. Tom was charged with Vehicular Manslaughter.

Following the collision, the police approached Mr. Tom who chose to remain silent in the face of questioning while in custody in a police vehicle. The Fifth Amendment of the U.S. Constitution provides for a “right to remain silent” and most citizens are familiar with this right. However, the Courts have recently moved to curtail this right by deciding that suspects should invoke their right to remain silent for it to apply, by using words to the effect of “I am exercising my right to remain silent”. By simply remaining silent, the suspect is opening the door for a prosecutor at trial to comment on their failure to speak up for themselves as a tacit admission of responsibility or guilt.

In Mr. Tom's case, prosecutors used his silence against him by inviting the jury to see him as callous and remorseless by failing to ask about the welfare of the other driver. The court decided that his silence was relevant to the issue of criminal recklessness. This decision was ultimately upheld by the California Supreme Court in the case of People v. Tom 14 S.O.S 3458.

The decision relied heavily on the case of Salinas v. Texas where the U.S. Supreme Court decided in a 5-4, majority decision, that a suspect should verbally announce his decision to remain silent for his constitutional right of silence to apply. A failure to answer questions without invoking Fifth Amendment protection, opens up a defendant to having his silence be used against him in evidence.

This leaves suspects in a very vulnerable position. If you do say something to the police, what you say may be used against you. If you say nothing, this may be used against you also. Most people will not be aware of the need to invoke their right of silence by specifically stating that they are doing so.

In the DUI context, particularly in felony DUI cases where there are injured victims, suspects are now under a burden at the crime scene to express immediate remorse and concern for the other parties welfare, or specifically state that they are invoking their Fifth Amendment right to silence. Simply saying nothing is now considered evidence of guilt.