Miranda Warnings

If You Receive Miranda Warnings, Your Talking and Subsequent Silence to Certain Questions Can Be Used Against You As Adoptive Admissions

Anyone who has watched much television is familiar with Miranda warnings, which remind a suspect of his Fifth Amendment right to remain silent:

You have the right to remain silent. Anything you say can
and will be used against you in a court of law. You have the
right to speak to an attorney, and to have an attorney present
during any questioning. If you cannot afford a lawyer, one
will be provided to you at government expense.

In the armed robbery case of People v. Jerry B. Bowman out of San Diego, police read Bowman his Miranda rights and Bowman agreed to voluntarily answer questions without a lawyer. Bowman talked plenty, but in response to certain questions, he just would not say anything.

For example, the detective confronted him with a document found in Bowman’s pocket with an address in San Diego that Bowman earlier claimed he knew nothing about. The detective asked Bowman was, “How do you explain this?” Bowman made no comment at all. He just stared at the detective. The detective also asked Bowman, “Why would the victim identify your cell phone as the cell phone he saw during the robbery?” Bowman again just stared at the detective, mute.

The case proceeded to trial and, during closing arguments, the prosecutor spoke about the jury instruction concerning adoptive admissions. It merits mention that Bowman’s attorney did not object to this particular jury instruction. The prosecutor said,

And then there is something the law calls adoptive admissions.
The detective says to him, you were in the area when the victim
was robbed. Sorry, but this is the perfect time to say, “No, I wasn’t,
the victim is wrong” if you did not do it. But if you sit there quietly,
while the detective is asking you such questions, the law says the
jury can consider such silence as adoptive admissions.

Bowman was then convicted and sentenced to sixteen years in state prison, as he had a prior strike offense and had served time in prison before, both which enhanced the sentence.

Bowman then appealed, claiming the trial court erred by instructing the jury it could consider his lack of a response to some of the detective’s questions as adoptive admissions because commenting on a defendant’s silence after receipt of Miranda warnings violated his constitutional right to remain silent.

The Fourth Appellate District began its analysis of the appeal (2011 DJDAR 18332) by noting that neither the U.S. Supreme Court nor the California Supreme Court had directly addressed such an issue of “selective silence” or “partial silence.” The Fourth Appellate District then noted that Bowman had failed to object to the jury instruction, which seemed to suggest Bowman had consented to not only the instruction, but also the prosecutor’s comments about Bowman’s silence.

The Court then many states, such as Connecticut, Florida, Michigan and Missouri, as well as other districts within California (but not the Fourth District), had allowed the prosecution to comment on a defendant’s selective silence after receiving Miranda warnings. Other courts within the United States had concluded the opposite.

Turning to Bowman’s case, the Fourth Appellate District found the trial court did not commit any error in letting the jury instruction reach the jury or in allowing the prosecution’s comments. It found that because Bowman did not tell the detective he wanted to cease all further questioning or ask for an attorney, he had no intent to invoke his right to remain silent. Therefore, the court concluded, Bowman’s silence was not induced by the Miranda warnings he received.

[Greghilllaw]

In early 2007, Richard Tom, while speeding and running a red light, broadsided Lorraine Wong’s vehicle. The impact tragically killed Wong’s eight year old daughter.

After holding Tom at the scene for about ninety minutes, during which time he remained silent except to ask if he could walk home, Redwood City Police Officers transported him to the police station. He was then asked to perform certain field sobriety tests and subsequently arrested. His blood alcohol content was taken more than three hours after the accident.

Tom was charged in San Mateo County Superior Court with vehicular manslaughter with gross negligence while intoxicated (Penal Code § 191.5), as well as felony DUI with injury to another (Vehicle Code § 23153(a)) and felony DUI with injury to another and having a BAC of .08 or higher (Vehicle Code § 23153(b)).

At trial, the prosecutor argued that Tom’s silence at the scene was evidence of his guilt. The jury convicted Tom of vehicle manslaughter with gross negligence (Penal Code § 192(c)(1)), as well as gross negligence resulting in injury to another. However, the jury acquitted him of all alcohol-related charges. The exact reason for this is unclear from the reported decision, but most likely was because Tom’s blood alcohol content was not taken within three hours of his last driving. Tom was sentenced to four years for his conviction of vehicular manslaughter, plus an additional term of three years to the great bodily injury on Wong’s other daughter in the car, who survived.

Tom appealed the judgment on many grounds, the most relevant of which being that the prosecution violated his Fifth Amendment privilege against self-incrimination by introducing evidence at trial of his pre-arrest, pre-Miranda silence as proof of his guilt. Miranda v. Arizona (1966) 384 U.S. 436. Tom objected to the introduction of such evidence at trial. On appeal, Tom argued that the trial court’s error was not harmless beyond a reasonable doubt.

The Firth Appellate District, in People v. Richard Tom (2012 DJDAR 3595), agreed with Tom and reversed the conviction.

The Court explicitly recognized that its ruling certainly may seem callous in light of the traffic accident, but it made it clear that protecting the constitution was one of its duties (not playing God). It first noted that Berkemer v. McCarty (1984) 468 U.S. 420 controlled its analysis, but here, “the facts compel a different outcome.” Berkemer’s most well-known holding is that a simple traffic stop involving just one officer is not the functional equivalent to being in formal arrest and therefore, Miranda warnings are not required.

In Tom’s case, he was held at the scene for an hour and a half and was not free to leave. The atmosphere “became increasingly coercive.” There were many police at the scene. They denied his request to leave the scene. He was not given Miranda warnings while in the police car, waiting to leave the scene. The Court found that he was in “de-facto arrest” at this point and thus Miranda applied.

Once this was determined by the Court, it noted that silence in the face of law enforcement “may be nothing more than an arrestee’s exercise” of his Miranda rights. Citing to Doyle v. Ohio (1976) 426 U.S. 610, the Court found precedent in prohibiting the prosecution from being able to comment upon an arrestee’s exercise of his Fifth Amendment right to remain silent when he later testifies at trial. Analogizing the situation in Tom to Doyle v. Ohio, the Court found it clear that the prosecution’s introduction of evidence of Tom’s silence was thus erroneous and clearly prejudicial.

Thus, the Court found that the trial court had erred, compelling the reversal of the conviction.