Mute of malice

A mute of malice is a defendant in a criminal case who willfully chooses not to speak, as opposed to one who does not speak because he is physically or psychologically unable to do so (see aphonia and muteness, respectively). In British jurisprudence, a separate trial is held before the main trial to determine whether the defendant is mute of malice or mute due to "visitation of God." In the past, if he was found by the jury to be mute of malice, he'd be tortured until either he spoke or died.

In the Netherlands, the concept is not used as in most other countries, the defendant has a constitutional right to silence and a right to refuse self-incrimination under all circumstances, such as in a court hearing or during a police questioning.

The concept is practically foreign to American jurisprudence (it does not even appear in Black's Law Dictionary) because willfully choosing not to speak is a Constitutional right; the defense attorney utters the plea and the defendant does not have to testify (per the case Griffin v. California interpreting the Fifth Amendment to the United States Constitution).

References

• A. J. Morris, S. Elcock, T. Hardie, & R. D. MacKay, "Changes to (un)fitness to plead and insanity proceedings" The Journal of Forensic Psychiatry & Psychology December 2006; 17(4): 603 – 610
• R. Morris, "The Face of Justice: Historical Aspects of Court Interpreting" Interpreting Volume 4, Number 1, 1999, pp. 97 - 123 (27)