Sometimes, but the answer depends on the exact interval and what happened. In People v. Tom, the California Supreme Court rejected a categorical Fifth Amendment bar to using postarrest, pre-Miranda silence where there was no custodial interrogation and the person had not clearly and timely invoked the privilege. The court expressly left open whether the Constitution bars use after a valid invocation in that setting, and it did not resolve every state-law evidence objection. The opinion is not a rule that all prewarning silence is admissible. (People v. Tom)

Start by mapping the sequence: arrest or other custody, any questions, Miranda warnings, what the person said or did not say, any clear invocation, and how the prosecutor used the silence. Silence without questioning is different from a response during unwarned custodial interrogation. A clearly asserted privilege raises the question Tom reserved, so do not assume the decision resolves it.

Postwarning silence is a different issue

Doyle v. Ohio addresses prosecution use of silence after Miranda warnings, including impeachment, and rests on a different due-process concern. It should not be collapsed into Tom’s prewarning facts. If the prosecutor referred to silence, identify the precise statement, the trial context, and whether the reference was to prewarning or postwarning silence. (Doyle v. Ohio; People v. Tom)

A separate evidence objection may also matter. Evidence Code section 352 permits a judge to exclude evidence when its probative value is substantially outweighed by the probability of undue prejudice, confusing the issues, misleading the jury, or undue consumption of time. That discretionary evidentiary analysis is not the same as deciding the constitutional question. (California Evidence Code § 352)

Keep the arrest and interview reports, recording, warning form, transcript, and the relevant trial testimony or closing argument. Those materials help distinguish silence from questioning, identify any invocation, and show how the prosecutor used the evidence. A court’s decision about one reference does not automatically determine the rest of the case.

For a California statement-evidence question, contact the Law Offices of David S. Chesley at (800) 755-5174.