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Pre-Miranda silence can be used against suspect

SAN FRANCISCO — The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.

Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.

Prosecutors repeatedly told jurors during the trial that Tom’s failure to ask about the victims immediately after the crash showed his guilt.

Tom’s attorney Marc Zilversmit said he could petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal, which must reconsider the case in light of the California Supreme Court ruling.

“It’s a very dangerous ruling,” Zilversmit said. “If you say anything to the police, that can be used against you. Now, if you don’t say anything before you are warned of your rights, that too can be used against you.”

The U.S. Supreme Court held in 2010 that remaining silent after receiving the Miranda warnings is not an invocation of the right to remain silent. That case, Berghuis v. Thompkins, split the high court 5-4.

The California case involved Tom’s silence before he was read his Miranda rights. The 4-3 ruling said a suspect’s pre-Miranda silence is admissible.

Justice Marvin Baxter, writing for the court majority, said it appears that Tom failed to invoke his constitutional right against self-incrimination.

Tom has been freed on $300,000 bail pending his appeal.

Tom was arrested after his Mercedes sedan plowed into a car driven by Lorraine Wong, who was turning left onto a busy street.

Prosecutors argue that Tom’s car was speeding at 67 mph in a 35 mph zone when the collision occurred. He was placed in the back of a police cruiser but was not officially arrested and advised of his rights until later in the day.

Prosecutors said Tom’s failure to ask about the Wong family while detained showed his guilt.

Justice Goodwin Liu dissented.

“The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent,” Liu wrote.

The ACLU filed a friend of the court brief supporting Tom’s appeal.

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