Saturday, September 6, 2014

BREAKING: Dangerous Decision from the California Supreme Court

This appeared in my e-mail. From the U.S. Concealed Carry Association, "Disturbing California Supreme Court Decision":

Just last month, the California Supreme Court issued an opinion that could cause serious problems for anyone who might find themselves involved in an incident where criminal charges are a possibility. [...]  
This particular case revolved around a negligent vehicular homicide charge. However, the ruling has serious implications for every citizen, especially those of us who carry, because in “California v. Richard Tom” (08/14/2014), the court has essentially turned the Fifth Amendment on its head.
The full decision document can be found here (PDF warning).

IANAL, but scanning through the decision, it quotes heavily from prior cases (not surprising in itself), but one U.S. Supreme Court case in particular stands out: Salinas v. Texas (2013), which found that before the reading of Miranda rights, if the person being questioned wants to invoke his/her Fifth Amendment rights, he/she must clearly and unambiguously say so. Simply "clamming up" can and will be used against him/her, sometimes just as effectively as saying too much.

Now, given the extent that this case relies on U.S. Supreme Court precedent, I think it's highly unlikely it will prevail on appeal, if it even is appealed, but that's pure speculation on my part.

Where the rubber meets the road, though, is this: "Sure, it's a crappy decision, but so was Salinas. What's it mean for us in the real world?"

Here's my take (worth every penny you're paying for it): In "Verdict in Detroit 'Front Porch' Shooting", I gave four pieces of personal advice (not to be confused with "legal advice"; consult a qualified defense attorney for that) if you're involved in a lethal-force encounter, including this:
Don't talk to the police. At least, don't talk to the responding police until after you've had a chance to talk with your attorney. Be polite, cooperate, but don't make statements; they can and will be used against you -- just like the Miranda rights say, whether or not the police have read them to you -- so don't give them an opening. Just say, "I will cooperate, and I'm more than willing to provide a statement, but I'm still frazzled and I'd like to wait until I can calm down and consult with my attorney." They'll want an immediate statement, but there's no law compelling you to provide one. Better to wait until you've had a chance to process the events, to compose yourself, and to discuss with competent defense counsel what you should say.
With this new decision in California v. Richard Tom, plus the previous one in Salinas v. Texas, the act of clearly and unambiguously stating that you're invoking your right to remain silent (for now) is more important than ever. They're going by a "reasonable police officer" test (from Davis v. United States [1994], if you're interested) -- presumably sort of a "reasonable man" test, applicable to police officers -- so make sure your statement to remain silent until counsel is present would be clear to a "reasonable cop".

Also, because the case rose out of the fact that Richard Tom didn't ask about the condition of the people in the other car, which became part of the prosecution's "consciousness of guilt" argument, it wouldn't hurt to follow up your statement by asking how the other party is doing.

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