Right to silence
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The right to silence is a legal protection given to people undergoing police interrogation or trial. The law 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 to refuse to answer questions. This can be the right to avoid self-incrimination or the right to not answer any questions. The right usually includes the provision that adverse comment or inferences cannot be made by the judge or jury about the refusal to answer questions before or during a trial or hearing. The right extends from the moment of suspension of freedom of movement (usually arrest) to the end of the trial.
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 swear 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 faced the prospect of either perjury (which was believed to be a mortal sin), harsh punishment for contempt of court or betraying their "natural" duty of self-preservation. After the parliamentary revolutions of the late 1600s, 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.
However the right to silence was not a practical reality in the English courts for centuries after that time. With no access to legal counsel, a shifting standard of proof and a system generally distrustful of silent defendants, a criminal accused who remained silent was committing figurative or literal suicide. Following the American Revolution and the enshrining of the right in the fifth amendment, the right became increasingly entrenched in common law legal systems across the world as other countries followed the rapidly developing jurisprudence in the US. The right to counsel, which also became increasingly entrenched following the American Revolution, gave defendants a practical method of mounting a defence while remaining silent and the development of the modern police force in the early 1800s 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 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 spread across continental Europe, in some form, throughout the late 20th century due to developments in international law which saw an increasing universalisation of certain due process protections. As an example, the right is recognised 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 R). The right does not apply to corporations (EPA v Caltex).
There are numerous statutory abrogations of the right, particularly in the area of bankruptcy. 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 a subsequent criminal trial.
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 involunatarily 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.
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 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. This may be contrasted with the US right to refuse to answer incriminating questions under the 5th Amendment even while on the witness stand. However section 13 of the Canadian Charter of Rights and Freedoms guarantees that a witness 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.
A leading case on the right to silence was R. v. Hebert, which held that the accused cannot be tricked into divulging any information until they consult with a lawyer.
France
In France, the 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).
Germany
According to § 136 Strafprozessordnung (StPO, i.e. Criminal Procedure Code) a suspect, arrested or not, has to be informed before any interrogation about his right to remain silent. It is not allowed to draw any interference 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 same 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 himself (or one of his relatives). The suspicious witness also must be cautioned about his right to remain silent. Suspicious witnesses cannot be heard under oath.
United States
In the United States, 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 must be told of their rights in what have become known as Miranda warnings. Miranda warnings are not 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. This is not considered a weakening of the right, but rather a balancing of one individual's rights with the rights of others for a properly functioning justice system. The interplay of local, state, and federal law is also complicated in this area.
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 inferencs 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.[1] Where inferences may be drawn from silence, the court must direct the jury as to the limits to the interferences which may properly be drawn from silence Cite error: A <ref> tag is missing the closing </ref> (see the help page).