"Remaining silent after being placed under arrest is not enough to exercise one's right to remain silent," said one justice.

CALIFORNIA — The Supreme Court of California has ruled that a suspect’s silence can be used as evidence of guilt during trial.

The 4-3 decision reversed an appellate court’s ruling and reinstated a man’s felony conviction for a 2007 vehicular manslaughter case. That case involved a motorist named Richard Tom, who broadsided another vehicle while speeding in Redwood City.

Following the collision, Mr. Tom chose to remain silent when confronted by police. While “the right to remain silent” is traced back to the Fifth Amendment and has received longstanding legal acceptance, courts have recently moved to curtail that right by claiming that a suspect must verbally invoke a condition of silence for the legal protection to apply, prior to the reading of the Miranda warning.

In other words, the burden rests on the suspect to indicate when he or she is exercising such a right. For example, a suspect must announce, “I’m going to remain silent now,” or “I am hereby invoking the Fifth Amendment” during police questioning for legal protection of silence to apply. Without specifically stating an intention to remain silent, prosecutors may portray the defendant as guilty for simply saying nothing.

That’s what happened in Mr. Tom’s manslaughter trial. Since he did not specifically invoke the Fifth Amendment, prosecutors exploited his silence by telling jurors that the defendant callously refused to ask about the injured parties; attempting to portray the behavior of a reckless and remorseless killer instead of a person exercising his rights (and standard legal advice).

At his 2008 trial, Mr. Tom was convicted of gross vehicular manslaughter. A San Mateo Superior Court judge said that Tom’s apparent lack of concern was relevant to the issue of criminal recklessness.

Mr. Tom went on to appeal the decision and in March 2012, California’s Third District Court of Appeal ruled that the testimony violated Mr. Tom’s Fifth Amendment rights because “post-arrest, pre-Miranda silence” could not be used as substantive evidence of guilt in a trial.

However, the appeal was overturned in August 2014 when the California Supreme Court issued its decision in The People v. Tom.

The majority opinion was written by Justice Marvin Baxter, and affirmed by Chief Justice Tani Cantil-Sakauye, Justice Ming Chin, and Justice Carol Corrigan.

The decision leaned heavily on the U.S. Supreme Court case Salinas v. Texas, in which the court ruled 5-4 that when a suspect doesn’t answer a particular question during an interrogation, his silence can be used as evidence in court to demonstrate guilt. In that case, the majority also held that a suspect must verbally announce his intention to remain silent for legal protection to apply. Salinas created a national precedent for undermining the right to remain silent.

The California decision was contentious, and demonstrates a no-win situation for suspects, particularly those who may be ignorant of their rights. The chances are next to nil that a suspect — innocent or guilty — would be informed of the outrageous nuances in the right to remain silent.

“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,” Justice Goodwin Liu wrote in his reasoned dissent. William Rylaarsdam concurred.

Justice Kathryn Werdegar dissented separately, writing that she agreed with Liu’s analysis, but that the high court should not have even considered the case because the issue wasn’t properly preserved in the trial court.

While Mr. Tom may not be the most sympathetic character, the legal precedence for convicting individuals based on silence may have broad-reaching effects on criminal justice.

“It’s a very dangerous ruling,” said Tom’s attorney, Marc Zilversmit. “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.”