The Supreme Court this morning divided 4-3 on whether the prosecution could use at trial a defendant’s pre-Miranda silence. In People v. Tom, the majority said “yes,” holding that the “defendant, after his arrest but before he had received his Miranda warnings, needed to make a timely and unambiguous assertion of the privilege in order to benefit from it.” Justices Werdegar and Liu each filed dissenting opinions. Fourth District, Division Three, Court of Appeal Justice William Rylaarsdam, sitting as a pro tem justice, signed Justice Liu’s opinion.
A dissenting pro tem has now become somewhat of a trend on the court since Justice Kennard’s April retirement left a vacancy that required a succession of Court of Appeal justices to sit on cases by assignment. Of the 22 opinions filed without Justice Kennard, there have been 5 non-unanimous decisions. In each one of those 5 cases, the pro tem has been in dissent, either alone or joining one or two permanent members of the court.
