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PostPosted: Fri Aug 22, 2014 8:19 am 
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Occupation: Writer, Doctoral Candidate in Systematic Theology
I'm not a fan of Turley, but this has me upset if he is correct:

http://jonathanturley.org/2014/08/22/ca ... -of-guilt/

The California Supreme Court has handed down a major 4-3 decision in a vehicular manslaughter case that further erodes the rights of citizens to remain silent after being placed into custody. As are all familiar with the Miranda warning that “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” However, as we recently discussed, the Supreme Court by plurality decision that effectively allowed pre-Miranda silence to be used against a criminal defendant in Salinas v. Texas 570 U.S. ___, ___ (2013) (plur. opn. of Alito, J.). Now, the California Supreme Court in People v. Tom, has handed down the first major application of Salinas and ruled that the prosecution can use the silence of a defendant (Richard Tom, left) as evidence of guilt. In California, it is not simply what you say but what you do not say that can be used against you. It is not clear if they are going to change the warning to let people know that if they do not speak, their silence can be used as incriminating.


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PostPosted: Fri Aug 22, 2014 9:34 am 
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Here's what I find odd about that case: the defense did not object at trial to the prosecution's use of his post-arrest, pre-Miranda silence. Nor did he raise the issue on appeal. So it's waived, in my opinion. But the Court of Apoeal considered it sua sponte and reversed. Rather than address the merits of the issue (and remand for further consideration), what the CA Supreme Court should have done was applied waiver and reversed the Court of Appeal. That's not to say that I think it's okay to use someone's post arrest pre-Miranda silence against them, but this issue was obviously waived by failure to object at trial.
Link to opinion: http://www.courts.ca.gov/opinions/documents/S202107.PDF

Edit: he may have raised the issue on appeal, but it's still waived, IMO.


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PostPosted: Fri Aug 22, 2014 10:54 am 
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Terrible decision. Our new Chief Justice has been a disappointment from day one. On the Court of Appeal she was a very different judge, not a conservative at all.

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PostPosted: Fri Aug 22, 2014 11:05 am 
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Location: Oceanside, California
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I do not practice criminal law, but it amazes me that they could use defendant's failure to ask about the victims as evidence of guilt. Just recently a tweeker in San Diego drove her car, in the wrong direction, into a group of 20 bicyclists on Fiesta Island. Video from the scene showed a distraught suspect who was obviously concerned about what happened. Could this be used as evidence of innocence?


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PostPosted: Fri Aug 22, 2014 11:22 am 
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Location: FEMA Camp 17 -- Malibu (Hey! You! Get off the lawn!)
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Failure to inquire about victims equates to absence of concern. (Defense: I was too drunk to know what I did. Yeah. That will work.)

_________________
When there are a finite number of ways to screw something up, Orly Taitz will find an infinite number of ways to do so. (The Sternsig Rule.)

Realist lives to serve. Foggy does it for the children. I'm in it for the schadenfreude.


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