Under the 5th Amendment to the United States Constitution and Article 2 Section 18 of the Colorado Constitution, the government may not force a person to testify against themselves in a criminal proceeding. This is commonly known as the “right to remain silent.” Through a long lineage of cases, the Supreme Court determined that invoking one’s right against self-incrimination can never be introduced as evidence of the person’s guilt. In other words, if a defendant does not want to testify at trial, the prosecutor may not argue that means it is more likely the defendant is guilty. The Supreme Court also determined that to invoke your right against self-incrimination, you must verbally state that you wish to remain silent. Indeed, you must break your right to remain silent to invoke your right to remain silent.

However, the California Supreme Court recently issued a ruling which is very troubling concerning the right to remain silent. In the case of The People v. Tom, issued August 2014, the defendant was accused of vehicular manslaughter after causing an accident which resulted in the death of the other driver. Mr. Tom was interrogated by police for two hours and never spoke a word. The California Supreme Court ruled in a 4-3 decision that not only did the defendant not invoke his right to remain silent, but the fact that he remained silent for two hours could be offered as evidence against him in trial. While it is important to note that the California Supreme Court has no jurisdiction over Colorado criminal law, and therefore the ruling does not apply in Colorado, it is a troubling decision for people that care about civil liberties. The case will almost certainly be appealed to the United States Supreme Court, which could have drastic consequences for criminal defense in the entire country.

If you are arrested for a crime in Colorado, you should tell the officer that you are invoking your 5th Amendment right to remain silent and your 6th Amendment right to have an attorney present for any questioning. Never answer an officer’s questions without your attorney present. The attorneys at Peter Loyd Weber & Associates will work tirelessly on your criminal case to make sure that your civil liberties are protected every step of the way. Call us for a free consultation today at (720)863-7755.

Categories: Civil Rights