Right to silence
Encyclopedia
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.
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 paved the way for the right to be extended to pre-trial questioning, and the practice of "Miranda warning
s" 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
.
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 inference
s 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. 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.
discusses the rights of the arrested and detained; no right to silence is mentioned either in the Constitution or the Bangladesh Penal Code, except in Article 35(4) of the Constitution, which protects individuals from self-implication. 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.
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.
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:
There may be no conviction based wholly on silence. 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.
This does not apply to investigations by the Serious Fraud Office
, where there is no right to silence.
Under Section 49 and Section 53 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).
but the European Court of Human Rights
has held that
, the French Code of Criminal Procedure (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).
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.
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.
IN 2010 The Supreme court made narco-analysis,brain mapping and lie detector test as a violation of Article 20(3).
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.
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."
("Arrested, detained and accused persons") states:
and later in the section:
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.
(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 warning
s. 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 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. 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.
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. 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). Raffel continues to be upheld in U.S. Courts despite the apparent contradictions with Miranda. In Re Grand Jury Subpoena to Sebastien Boucher, 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. 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." This decision was the third time in the same term that the Supreme Court placed limits on Miranda rights. 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."
(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. There are significant protections against coercive self incrimination in Article 31, UCMJ, but it does differ somewhat from the Miranda warning, and in essence provides greater protections. 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.
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".
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
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
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
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
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
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.
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 ChamberStar Chamber
The Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
and High Commission of 16th century England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
. People coming before these tribunals were forced to make the ex officio oath
Ex officio oath
The ex-officio oath was an English judicial and ecclesiastical weapon developed in the first half of the seventeenth century, and used as a form of coercion, persecution, and forcible self-incrimination in the religious trials of that era...
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
Mortal sin
Mortal sins are in the theology of some, but not all Christian denominations wrongful acts that condemn a person to Hell after death. These sins are considered "mortal" because they constitute a rupture in a person's link to God's saving grace: the person's soul becomes "dead", not merely weakened...
of perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
(if they lied under oath to protect themselves), harsh punishment for contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
(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
John Henry Wigmore
John Henry Wigmore was a U.S. jurist and expert in the law of evidence. After teaching law at Keio University in Tokyo , he was the dean of Northwestern Law School...
, "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
English Restoration
The Restoration of the English monarchy began in 1660 when the English, Scottish and Irish monarchies were all restored under Charles II after the Interregnum that followed the Wars of the Three Kingdoms...
(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
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and countries formerly part of the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
(such as Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
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
American Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
. 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
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
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
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...
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
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
, 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 paved the way for the right to be extended to pre-trial questioning, and the practice of "Miranda warning
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...
s" became established in the US and elsewhere following the case of Miranda v. Arizona
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
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
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
protections. As an example, the right is recognized in key international human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
documents such as the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
.
Australia
AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
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 inference
Adverse inference
Adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence. It is part of evidence codes based on common law in various countries....
s 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
Circumstantial evidence
Circumstantial evidence is evidence in which an inference is required to connect it to a conclusion of fact, like a fingerprint at the scene of a crime...
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
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
. There are also abrogations of the right in recent Federal anti-terrorism and Victorian organised crime Acts. 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 BangladeshConstitution of Bangladesh
The Constitution of Bangladesh is the supreme law of Bangladesh. It declares Bangladesh as a secular democratic republic where sovereignty belongs to the people; and lays down the framework defining fundamental political principles of the state and spells out the fundamental rights of citizens...
discusses the rights of the arrested and detained; no right to silence is mentioned either in the Constitution or the Bangladesh Penal Code, except in Article 35(4) of the Constitution, which protects individuals from self-implication. 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.
Canada
The right to silence is protected under section 7Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
and section 11(c)
Section Eleven of the Canadian Charter of Rights and Freedoms
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary
Voluntariness
Voluntariness is a legal and philosophical concept referring to a choice being made of a person's free will, as opposed to being made as the result of coercion or duress. Philosophies such as libertarianism and voluntaryism, as well as many legal systems, hold that a contract must be voluntarily...
statements made to police
Policing in Canada
In Canada, there are three levels of police forces: municipal, provincial, and federal. Constitutionally, law enforcement is a provincial responsibility, and most urban areas have been given the authority by the provinces to maintain their own police force...
are admissible
Admissibility
Admissibility may refer to:* Admissible evidence, evidence which may be introduced in a court of law.* Admissible decision rule, in statistical decision theory, a rule which is never dominated.* Admissible rule, in logic, a type of rule of inference....
as evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
. 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
Witness box
A witness box is part of a courtroom. It is the section of the room set aside for witnesses to stand or sit in while giving their testimony or presenting evidence. In U.S. English, it is known as the witness stand or merely the stand....
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
Section Thirteen of the Canadian Charter of Rights and Freedoms
Section Thirteen of the Canadian Charter of Rights and Freedoms is a section of the Charter which, along with section 11 , specifies rights regarding self-incrimination.It reads:...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
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
The right to silence has a long history in England and Wales, first having been codified in the Judges' RulesJudges' Rules
The Judges' Rules are a set of guidelines about police and questioning and the acceptability of the resulting statements and confessions as evidence in court...
in 1912. A defendant in a criminal trial has a choice whether or not to give evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
in the proceedings
Proceedings
In academia, proceedings are the collection of academic papers that are published in the context of an academic conference. They are usually distributed as printed books either before the conference opens or after the conference has closed. Proceedings contain the contributions made by researchers...
. Further, there is no general duty to assist the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
with their inquiries.
At common law, and particularly following the passing of the Criminal Justice and Public Order Act 1994
Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...
, 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. 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.
This does not apply to investigations by the Serious Fraud Office
Serious Fraud Office (UK)
The Serious Fraud Office is an independent UK Government department that investigates and prosecutes serious or complex fraud and corruption...
, where there is no right to silence.
Under Section 49 and Section 53 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 RightsEuropean Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
but the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
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.
France
In FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, the French Code of Criminal Procedure (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
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
. 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
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
counsel
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
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.
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.
IN 2010 The Supreme court made narco-analysis,brain mapping and lie detector test as a violation of Article 20(3).
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.South Africa
According to Section 35 of the Constitution of 1996Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
("Arrested, detained and accused persons") states:
- 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
Garda Síochána
, more commonly referred to as the Gardaí , is the police force of Ireland. The service is headed by the Commissioner who is appointed by the Irish Government. Its headquarters are located in the Phoenix Park in Dublin.- Terminology :...
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
The Fifth Amendment to the United States ConstitutionFifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
(part of the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
) codifies the right to silence. The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has ruled that suspects questioned while in police custody must be told of their rights in what have become known as Miranda warning
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...
s. 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
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
.
However, if the state feels the need, a suspect or subpoenaed grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
witness may be given a grant of immunity
Prosecutorial immunity
Immunity from prosecution occurs when a prosecutor grants immunity, usually to a witness in exchange for testimony or production of other evidence. It is immunity because the prosecutor essentially agrees to never prosecute the crime that the witness might have committed in exchange for said...
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 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. 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.
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. 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). Raffel continues to be upheld in U.S. Courts despite the apparent contradictions with Miranda. In Re Grand Jury Subpoena to Sebastien Boucher, 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. 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
Berghuis v. Thompkins
Berghuis v. Thompkins, , is a decision by the United States Supreme Court in which the Court considered the position of a suspect who understands his or her right to remain silent under Miranda v. Arizona and is aware he or she has the right to remain silent, but does not explicitly invoke or...
, holding that a suspect's mere "silence during the interrogation did not invoke his right to remain silent." This decision was the third time in the same term that the Supreme Court placed limits on Miranda rights. 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."
Uniform Code Of Military Justice
In the United States, military personnel are covered by the Uniform Code of Military JusticeUniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
(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. There are significant protections against coercive self incrimination in Article 31, UCMJ, but it does differ somewhat from the Miranda warning, and in essence provides greater protections. 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.
Czech Republic
The Czech RepublicCzech Republic
The Czech Republic is a landlocked country in Central Europe. The country is bordered by Poland to the northeast, Slovakia to the east, Austria to the south, and Germany to the west and northwest....
protects right to silence by two clauses in the Charter of Fundamental Rights and Basic Freedoms
Charter of Fundamental Rights and Basic Freedoms
The Charter of Fundamental Rights and Basic Freedoms is a document enacted in 1991 by the Czechoslovak Federal Republic, and continued as part of the great constitutional systems of both the Czech Republic and Slovak Republic...
. 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".
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