Right to silence

The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems.

The right covers a number of issues centered around the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding. This right constitutes only a small part of the defendant's rights as a whole.^{[citation needed]}

History

Neither the reasons nor the history behind the right to silence are entirely clear. The Latin maxim nemo tenetur se ipsum accusare ('no man is bound to accuse himself') became a rallying cry for religious and political dissidents who were prosecuted in the Star Chamber and High Commission of 16th century England. People coming before these tribunals were forced to make the ex officio oath by which they swore to truthfully answer the questions to be put before them without knowing what they were being accused of. This created what has been termed the cruel trilemma whereby these accused were forced to chose between committing the mortal sin of perjury (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honour their oath).

After the parliamentary revolutions of the late 17th century, according to some historical accounts, the right to silence became established in the law as a reaction of the people to the excesses of the royal inquisitions in these courts. The rejection of the procedures of the Courts of Star Chamber and High Commission eventually resulted in the emergence of the principle, according to US jurist and law of evidence expert John Henry Wigmore, "that no man is bound to incriminate himself, on any charge (no matter how properly instituted), or in any Court (not merely in the ecclesiastical or Star Chamber tribunals)". It was extended during the English Restoration (from 1660 on) to include "an ordinary witness, and not merely the party charged".

However, the right to silence was not always a practical reality for all accused in the English courts for some period afterwards. With limited access to legal counsel (often depending on the social status of the accused), a shifting standard of proof, and a system generally distrustful of silent defendants, a criminal accused who remained silent was often committing figurative or literal suicide. Nevertheless, it remained a basic right available to the accused and has been an accepted practice over the past few centuries. In England, the practice of judicial questioning of accused persons at trial (as distinct from questioning prior to trial), did not really disappear until well into the 18th century. But by the 19th century, the accused was not allowed to give evidence on oath even if they wanted to - also said to be a reaction to the inequities of the Star Chamber and High Commission.

In the United Kingdom and countries formerly part of the British Empire (such as Commonwealth nations, the United States and the Republic of Ireland) the right to silence has remained enshrined in the common-law tradition inherited from England. In the U.S. the right existed prior to the American Revolution. However, it was considered one of the most important safeguards protecting citizens against arbitrary actions of the state, and was enshrined in the Fifth Amendment to the Constitution, along with the words "due process", which was first mentioned in a statute of Edward III in 1354 and contains similar wording to the Fifth Amendment.

Contrary to the view sometimes expressed in the United States, the right to silence as practised in American jurisprudence did not originate nor spread from there to other parts of the world, but came from English law - and particularly in countries where there had been a colonial presence. The evidence of that is to be seen in the near-identical systems of criminal law still in operation in those nations that inherited the English system - including the US. The two different but diverging paths along which these rights evolved and operate in Anglo-American jurisprudence (one through rights expressed in an entrenched constitution, the other in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth nations like Australia and New Zealand, where police officers are still required at common law to issue "Miranda-style" warnings (but which are completely unrelated to the US Miranda warning ruling) and inform an arrested person that they do not have to answer any questions but that whatever they do say (or do) can be used in court as evidence. They must also ask an arrested person whether they understand these rights. Any failure to do so can jeopardise a criminal prosecution. While differing slightly to the wording used in the US, the intent is identical and comes from the inherited tradition of law. However, in Australia, for instance, anything said by the accused under police questioning while in custody will generally not be accepted into evidence unless it is corroborated, generally via audio or video record.

As in the U.S., suspects in Commonwealth countries are also entitled to have counsel present during questioning. In the United Kingdom, laws introduced in the past decade, while still supporting the presumption of innocence, have swung the right to silence slightly back the other way: suspects are told they have the right to remain silent but are now also cautioned that anything they do not reveal in questioning but later rely upon in court may harm their defence. In other words, in some cases inferences can be drawn. The right to counsel, which also became increasingly entrenched in the US following the American Revolution, gave defendants a practical method of mounting a defense while remaining silent, and the development of the modern police force in the early 19th century opened up the question of pre-trial silence for the first time. The key American case of Bram v. United States^[1] paved the way for the right to be extended to pre-trial questioning, and the practice of "Miranda warnings" became established in the US and elsewhere following the case of Miranda v. Arizona in 1966.

While initially alien to inquisitorial justice systems, the right to silence spread across continental Europe, in some form, throughout the late 20th century, due to developments in international law which saw an increasing universalization of certain due process protections. As an example, the right is recognized in key international human rights documents such as the International Covenant on Civil and Political Rights.

Worldwide

Australia

Australia has no constitutional protection for the right to silence, but it is broadly recognised by State and Federal Crimes Acts and Codes and is regarded by the courts as an important common law right. In general, criminal suspects in Australia have the right to refuse to answer questions posed to them by police before trial and to refuse to give evidence at trial. As a general rule judges cannot direct juries to draw adverse inferences from a defendant's silence (Petty v R) but there are exceptions to this rule, most notably in cases which rely entirely on circumstantial evidence which it is only possible for the defendant to testify about (Weissensteiner v ). The right does not apply to corporations (EPA v Caltex).

There are numerous statutory abrogations of the right, particularly in the area of bankruptcy. It is also not available to witnesses testifying before a Royal Commission. There are also abrogations of the right in recent Federal anti-terrorism and Victorian organised crime Acts.^[2] Each of these acts set up coercive questioning regimes which operate outside the normal criminal processes. Direct testimonial evidence gained from this coercive questioning cannot be used in any subsequent criminal trial of the person providing the evidence, however a witness who testifies in his defence at a subsequent criminal trial who provides a different testimony to that during the questioning may face prosecution for perjury.

Bangladesh

Article 33 of the Constitution of Bangladesh discusses the rights of the arrested and detained; no right to silence is mentioned either in the Constitution^[3] or the Bangladesh Penal Code,^[4] except in Article 35(4) of the Constitution, which protects individuals from self-implication.^[3][5] To facilitate protection from self-implication, Bangladesh Penal Code makes an exception in cases of confessions, in which case, the Magistrate obtaining a confession under Section 164 must explain the confessor's right to silence, and must attest to the fact that the rights of the confessor were read out to him and explained, and the confessor waived his right of silence.^[5]

Canada

The right to silence is protected under section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

These rights to silence exist only when the suspect is knowingly dealing with a person in authority. When the subject is unaware he is dealing with the police, such as in the case of an undercover operation, these protections do not exist. Statements made to police officers during undercover operations are almost always allowed into evidence unless the conduct of the police was deemed so egregious that it would shock the community.

One case in relation to the right to silence is the Hodgson decision (R. v. Hodgson, [1998] 2 S.C.R. 449). In this case the subject was confronted by the victim and her parents. He confessed to them and was subsequently held at knife point until the police arrived. The court found that his confession was admissible because the complainant and her parents were not deemed to be 'persons in authority'. The subject was convicted based in large part in his confessions made at that time.

In R. v. Singh (163 C.R.R. (2d) 280), a person in police custody invoked his right to silence 18 times, and after each invocation, the police continued to browbeat the detained subject with further questioning, implying that his claim of a right to silence was either ineffective or meaningless. The Canadian Supreme Court ruled that this police behavior did not violate the right to silence, so the evidence obtained could be admitted. It is important to note that most rights in Canada can be limited by s. 1 of the Charter, which permits rights to be reduced if they interfere with substantial government interests, or by s. 24 of the Charter, which permits illegally obtained evidence to be admitted regardless of its illegality as long as its exclusion from the trial would "bring the administration of justice into disrepute" in terms of the public's confidence that criminals are not escaping conviction on a mere rights 'technicality.'

Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the witness box and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. section 13 of the Canadian Charter of Rights and Freedoms guarantees that witnesses may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence but only where that evidence is to be used against a third party.

In most cases, except for certain sex offences or where the victims are children, spouses can not be compelled to testify against each other.

England and Wales

Main article: Right to silence in England and Wales

The right to silence has a long history in England and Wales, first having been codified in the Judges' Rules in 1912. A defendant in a criminal trial has a choice whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries.

At common law, and particularly following the passing of the Criminal Justice and Public Order Act 1994, adverse inferences may be drawn in certain circumstances where the accused:

• fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention;
• fails to give evidence at trial or answer any question;
• fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or
• fails to account on arrest for his presence at a place.

There may be no conviction based wholly on silence.^[6] Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence.^[7]

This does not apply to investigations by the Serious Fraud Office, where there is no right to silence.

Under Section 49^[8] and Section 53^[9] of the Regulation of Investigatory Powers Act 2000 (RIPA), it is an offence to fail to disclose when requested the key to encrypted data (with a penalty of two years in prison).

European Convention on Human Rights

The concept of right to silence is not specifically mentioned in the European Convention on Human Rights but the European Court of Human Rights has held that

the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.^[10]

France

In France, the French Code of Criminal Procedure^[11] (art. L116) makes it compulsory that when an investigating judge hears a suspect, he must warn him that he has the right to remain silent, to make a statement, or to answer questions. A person against which suspicions lay cannot legally be interrogated by justice as an ordinary witness.

At the actual trial, a defendant can be compelled to make a statement. However, the code also prohibits hearing a suspect under oath; thus, a suspect may say whatever he feels fit for his defense, without fear of sanction for perjury. This prohibition is extended to the suspect's spouse and members of his close family (this extension of the prohibition may be waived if both the prosecution and the defense counsel agree to the waiver).

Germany

According to § 136 Strafprozessordnung (StPO, i.e. Criminal Procedure Code) a suspect, arrested or not, has to be informed before any interrogation about their right to remain silent. It is not allowed to draw any inference from the complete silence of the accused in any stage of the criminal proceedings. However, it is allowed to draw conclusions if the accused remains silent only to certain questions about the crime. Suspects cannot be heard under oath.

A person against which exist plausible causes of suspicion can be interrogated as an ordinary witness in criminal proceedings against another person. However, in this case according to § 55 StPO, the witness can refuse to answer questions which could incriminate themselves (or one of their relatives). The suspicious witness also must be cautioned about the right to remain silent. Suspicious witnesses cannot be heard under oath.

Hong Kong

The right to silence is protected according to common law.^[12]

India

The constitution of India guarantees every person right against self incrimination under Article 20 (3)"No person accused of any offense shall be compelled to be a witness against himself". It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one's mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.^[13] IN 2010 The Supreme court made narco-analysis,brain mapping and lie detector test as a violation of Article 20(3).^[14]

Netherlands

In the Netherlands, each accused suspect has the right to remain silent to questions of the police and the prosecutor, during interrogation or investigation at the hearing.

There is an exception: The accused must cooperate when there is "een aan de wil van de verdachte onafhankelijk goed" (material which has an existence independent of the will of a suspect) and a legal obligation for the suspect to hand over such material exists. For example, a suspect has to cooperate with giving a blood sample (with a suspicion of alcohol in traffic). Or the defendant must cooperate in handing over mucus, dandruff or hair for a DNA test. Such a DNA test can only be done at the request of the Prosecutor and ordered by the judge. There also have to be serious objections against the accused. And temporary detention has to be applicable.

Northern Ireland

The Criminal Evidence (Northern Ireland) Order 1988 provided for adverse inferences being drawn for failure to mention something prior to being charged to an offence. The Criminal Procedure (Amendment) Rules 2009/2087 which came into effect on 5 October 2009, and replaced the Criminal Procedure Rules 2005, Pt 24 provides for post-charge questioning. This can be applied for failure to mention facts after a suspect has been charged with an offence.

The scope of Emergency Legislation in Northern Ireland includes limitations on the right to silence, extended police detention powers and limitations on a suspect’s right to legal counsel at time of arrest which can all impact upon a suspects right to a fair trial. In John Murray v United Kingdom , the ECHR declared that the fair trial guarantee encompassed the entire legal process from the moment of arrest through to conviction. The ECHR addressed this issue in a limited context in Murray v UK (1996); "To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is - whatever the justification for such denial - incompatible with the rights of the accused under Article 6."

Pakistan

Article 13 of the 1973 Constitution of Pakistan protects a person from self-incrimination.^[15]

South Africa

According to Section 35 of the Constitution of 1996^[16] ("Arrested, detained and accused persons") states:

1. Everyone who is arrested for allegedly committing an offence has the right
   • to remain silent;
   • to be informed promptly
     • of the right to remain silent; and
     • of the consequences of not remaining silent;
   • not to be compelled to make any confession or admission that could be used in evidence against that person;

and later in the section:

• Every accused person has a right to a fair trial, which includes the right
  • ....
  • not to be compelled to give self-incriminating evidence;

Republic of Ireland

In the Republic of Ireland, the Supreme Court held the right not only a common law right but also a constitutional right which might however be validly limited by legislation (O'Leary v AG [1995] 1 IR 254).

In this jurisdiction, a number of statutory measures have re-interpreted the right to silence, such as the Criminal Justice Act 1984, the Criminal Justice (Drug Trafficking) Act, 1998 and the Offences Against the State (Amendment) Act, 1998. The general effect of some of these measures is to provide for adverse inferences to be drawn against a suspect who declines to answer questions while being questioned in Garda custody. The Criminal Justice Act 2006 also affects the right to silence, in that it permits inferences to be drawn from silence where no solicitor is present.

United States

Main article: Fifth Amendment to the United States Constitution

The Fifth Amendment to the United States Constitution (part of the Bill of Rights) codifies the right to silence. The Supreme Court has ruled that suspects questioned while in police custody must be told of their rights in what have become known as Miranda warnings. Miranda warnings are required to be given during the questioning of a suspect prior to actual arrest, for example during the execution of a search warrant.

However, if the state feels the need, a suspect or subpoenaed grand jury witness may be given a grant of immunity and compelled to give testimony under oath. The interplay of local, state, and federal law is complicated in this area. A grant of immunity removes the possibility of the jeopardy of self incrimination, and therefore removes the right to remain silent to avoid self incrimination. (This is not to be confused with the issue of legally privileged communications, such as those between a lawyer and client, doctor and patient, and clergy and parishioner.)

There is a conflict between Miranda and Raffel v United States^[17] that remains unresolved by the U.S. Supreme Court. In Raffel v U.S., and in law enforcement practice, the court finds that at the very moment a suspect cooperates and answers questions and/or consents to search, the suspect gives up those rights and must continue that cooperation and consent through to that person's possible/eventual arrest, trial and judgment.^[18] Therefore, in the United States, by cooperating with police in any way prior to arrest, a person gives up Fourth and Fifth Amendment rights that under Raffel technically cannot be reclaimed later, after arrest and Miranda notification of those rights. This in reality renders Miranda warnings rather limited in effect, since police do not have to advise a person of his or her rights until after he or she self-incriminates and/or is arrested; if the person has cooperated prior to arrest, then the arrestee has already surrendered most of the rights of which the police are advising that arrestee.^[19]

In the U.S., the only way for one to protect one's rights fully is to refuse answering any questions beyond giving one's name and identifying papers if requested and to refuse giving consent to anything (such as a search) prior to one's arrest.^[20] Law enforcement officials do not have to tell civilians the truth on any subject. They can make any promises and claims they like in order to induce a person to incriminate herself or himself or to allow the officer to perform a search, and law enforcement officials are not bound by anything they promise to suspects or witnesses (i.e. promises of aid or protection).^[21] Raffel continues to be upheld in U.S. Courts despite the apparent contradictions with Miranda. In Re Grand Jury Subpoena to Sebastien Boucher,^[22] the U.S. District Court for Vermont ruled that because the defendant had already cooperated as far as he had and already potentially incriminated himself, by stating his ownership of his laptop and providing law enforcement with partial access to it prior to his arrest, that he must now surrender complete access to all information on that laptop, even encrypted and potentially self-incriminating or confidential information.^[23] Because the defendant had cooperated in part already, the Court ruled that the defendant must continue cooperation and provide the decrypted and potentially harmful information to the government. This is particularly noteworthy since prior U.S. Supreme Court rulings normally protect suspects even after conviction from the requirement of revealing self-incriminating information such as locations of their victims' bodies and/or property.

In June 2010 the U. S. Supreme Court announced its decision in Berghuis v. Thompkins, holding that a suspect's mere "silence during the interrogation did not invoke his right to remain silent."^[24][25] This decision was the third time in the same term that the Supreme Court placed limits on Miranda rights.^[26] In the dissenting opinion, Justice Sotomayor called the majority's decision, "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation."^[27]

Uniform Code Of Military Justice

In the United States, military personnel are covered by the Uniform Code of Military Justice (UCMJ). Under the UCMJ sworn military personnel, whether of enlisted, warrant or commissioned rank, have a right to remain silent that was established 16 years before the Miranda v. Arizona ruling.^[28] There are significant protections against coercive self incrimination in Article 31, UCMJ,^[29] but it does differ somewhat from the Miranda warning, and in essence provides greater protections.^[28] This is one difference between civilian and military justice in the United States, and many other nations have similar corollary rules regarding military justice vs. civilian justice.^[30]

Czech Republic

The Czech Republic protects right to silence by two clauses in the Charter of Fundamental Rights and Basic Freedoms. Article 37, clause 1 states that "everyone has right to refuse a statement if he/she would cause risk of prosecution of himself/herself or a close person". In Article 40, clause 4, it is stated that "an accused person has right to refuse a statement; he/she must not be deprived of this right any way".^[31]

See also

• Taking the Fifth
• Privilege (evidence)

References

1. ^ Bram v. United States
2. ^ Major Crime (Investigative Powers) Act 2004
3. ^ ^{a b} "Constitution of Bangladesh: Chapter III". Prime Minister's Office. http://www.pmo.gov.bd/pmolib/constitution/part3.htm. Retrieved 2 October 2011. 
4. ^ [www.ahrchk.net/pub/pdf/TheStateofHRin11AsianNations2007.pdf "The State of Human Rights in Eleven Asian Nations – 2007"]. Asian Human Rights Commission. www.ahrchk.net/pub/pdf/TheStateofHRin11AsianNations2007.pdf. Retrieved 2 October 2011. 
5. ^ ^{a b} Azad, Mak (3 October 2007). "Do citizens get the protection provided by the constitution?". The Daily Star. http://www.thedailystar.net/law/2007/10/03/index.htm. Retrieved 2 October 2011. 
6. ^ Criminal Justice and Public Order Act 1994, s. 38.
7. ^ See the specimen direction of the Judicial Studies Board.
8. ^ Regulation of Investigatory Powers Act 2000, s. 49
9. ^ Regulation of Investigatory Powers Act 2000, s. 53
10. ^ Murray v. UK, (1996) 22 EHRR 29, at para. [45] (ECtHR 1973). Text
11. ^ [1]
12. ^ http://www.legco.gov.hk/yr05-06/english/panels/se/papers/se0103cb2-754-04-e.pdf
13. ^ Privilege Against Self - Incrimination
14. ^ Forced narco tests illegal: Supreme Court - Times Of India
15. ^ The Constitution of PakiStan - PakSearch.com
16. ^ Section 35 of the South African constitution
17. ^ Raffel v. United States, 271 U.S. 494 (1926)
18. ^ RAFFEL V. UNITED STATES, 271 U. S. 494 :: Volume 271 :: 1926 :: Full Text :: US Supreme Court Cases from Justia & Oyez
19. ^ Right to Remain Silent Mirandarights.org
20. ^ Miranda v. Arizona, SCOTUS, 1966
21. ^ Rivera v. State of Rhode Island, 402 F.3d 27 & No. 04-1568 (1st Cir. March 22, 2005) http://www.ca1.uscourts.gov/pdf.opinions/04-1568-01A.pdf
22. ^ In Re Grand Jury Subpoena to Sebastien Boucher No. 2:06-mj-91, 2009 WL 424718 - Feb. 19, 2009
23. ^ http://federalevidence.com/pdf/2009/03-March/InreBoucherII.pdf
24. ^ Berghuis v. Thompkins No. 08–1470. Argued March 1, 2010—Decided June 1, 2010 (Slip Opinion), October Term, 2009. Accessed 1 June 2010.
25. ^ Berghuis_v._Thompkins SCOTUS Wiki. Accessed 1 June 2010.
26. ^ Jesse J. Holland, "Right to remain silent? Suspect better speak up", Associated Press, June 1, 2010. Retrieved 1 June 2010.
27. ^ Ibid.
28. ^ ^{a b} Military Justice 101 - Part 5, Right to Remain Silent (Article 31 Rights)
29. ^ Uniform Code of Military Justice (UCMJ) - ART. 31. COMPULSORY SELF-INCRIMINATION PROHIBITED
30. ^ Military Judicial Rules of Procedure, Uniform Code of Military Justice - 1951 as amended
31. ^ Charter of Fundamental Rights and Basic Freedoms (cs)

External links

• Don't Talk to the Police - Professor James Duane of the Regent University School of Law
• Don't Talk to the Police - Officer George Bruch from the Virginia Beach police department