BY IAN MILLHISER POSTED ON AUGUST 19, 2014 | ThinkProgress

Richard Tom is not a sympathetic individual. On an evening in 2007, Tom drove his Mercedes into a car carrying Loraine Wong and her two daughters. Wong’s eight year-old daughter was killed. Her ten year-old daughter was seriously injured. Tom was almost certainly driving well over the speed limit at the time of the collision. He may have been legally drunk.

Yet Tom’s actions shortly after this accident — or, more accurately, his silence — could have profound implications for hundreds of other criminal defendants across California. In a 4-3 decision handed down Friday by the California Supreme Court, a majority of the state’s justices used Tom’s case to significantly roll back the right of each criminal defendant to rem.... In the United States Supreme Court’s iconic decision in Miranda v. Arizona, the Court held that “if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent” and that “[t]he warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.” Under the California justices’ decision in People v. Tom, however, many California defendants may have their very silence used against them in court.

Tom builds off of the U.S. Supreme Court’s 2013 decision in Salinas v. Texas, which established that a suspect who voluntarily answers police questions before they are arrested can have their silence used against them if they choose not to answer a particular question. The Tom decision extends this rule, allowing prosecutors to use a suspect’s silence against them even after they have been placed under arrest, so long as the “defendant has not yet been Mirandized.” In Mr. Tom’s case, that meant that the prosecutor could call attention to Tom’s silence after the accident, claiming that Tom’s failure to ask the officers about how the people injured in the accident were doing was evidence that he was conscious of his own guilt.

As Justice Goodwin Liu points out in dissent, there are a number of potential problems raised by this holding. “As anyone who has ever watched a crime drama on television knows,” Liu explains at the beginning of his dissent, “a suspect who is placed under arrest ―has a right to remain silent,” and “any statement he does make may be used as evidence against him.” Since these Miranda rights are well known, a suspect is likely to believe that the best way to preserve their legal rights is to shut their mouth completely — after all, “anything” they say can be used against them. The court’s decision in Tom, however, requires many arrestees to explicitly invoke their right to remain silent in order to benefit from that right. The only way to safely remain silent is to speak first.

Additionally, according to Justice Liu, the court’s opinion “does not explain how its rule is supposed to work in practice.” Shortly after the accident, police placed Tom in the backseat of a patrol car and then left him there. Though he was effectively in police custody at this point, it was not at all clear how he could have invoked his right to remain silent even if he wanted to. “To whom and how should he have invoked the Fifth Amendment privilege?” Liu asks. “Was he required to approach an officer on his own initiative and blurt out, ‘I don‘t want to talk’? Would it have been enough for Tom to say just that, without mentioning the Fifth Amendment or otherwise indicating he didn‘t want to incriminate himself?”

And what of the court’s holding that a suspect’s silence may be used against them only up until the point when the suspect is read their Miranda rights. This holding, Liu warns, gives police an “incentive to delay the warnings so that any postarrest, pre-Miranda silence could be used against the suspect.”

Tom does not outright destroy the right to remain silent in California, but it requires suspects to have a lawyer’s understanding of when they need to invoke the right and how they are supposed to do so in order to ensure that this right is preserved. Because few suspects are likely to have such a sophisticated understanding of the law, that means that the right will be little more than an illusion for many people trying to invoke it in California’s courts.