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Right to silence
The right covers a number of issues centred 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 (which is most often arrest) to the end of the trial.
The legal basis for the right to silence is that the state should have the responsibility for proving a defendant's guilt. In addition, there is the practical matter that when faced with the power of the state, defendants have been easily coerced into giving false confessions, and that allowing the state to coerce testimony creates a strong incentive on the state to use torture.
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.
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).
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.
England and Wales
In England and Wales, the right of suspects to refuse to answer questions before their trial was not codified as Judges' Rules until 1912. Prior to then, while torture had been banned, the 'mistreatment' of silent suspects to induce a confession was common and the refusal to answer questions was used as evidence against them. The intermingling of the investigative and judicial roles was not formally divided until 1848, when the interrogation of suspects was made solely a police matter, with the establishment of the modern police forces.
The right to silence during actual trial was well established in common law, the defendant was "incompetent" to give evidence and attempts to force answers, such as the efforts of the Star Chamber were judged unlawful - although often later than some individuals may have hoped. Being unable to speak at their own trial, the practice of defendants giving an unsworn statement was introduced and was recognized in law in 1883. Defendants testifying in their own defence was also introduced in the 1880s (and extended to all offences by 1898) although the right to silence was clearly protected. As the right to testify was extended the possibility of unsworn statements was withdrawn.
The Judges' Rules, with the inclusion of a caution on arrest of the right to silence, were not taken in by the government until 1978. However the right was already well established by case law as was the necessity of no adverse comments, the principle being that the defendant does not have to prove their innocence - the burden of evidence rests on the prosecution.
There were a number of projects to modify the law, such as the 1972 Criminal Law Revision Committee. The committee recommended that inferences should be drawn from silence, but the committee report was strongly opposed. Certain changes were introduced in 1984, deriving from the Royal Commission on Criminal Procedure report of 1981, these introduced a right to have a legal representative during police interrogation and improved access to legal advice.
The right to silence during questioning and trial was changed substantially in the 1990s. The right had already been reduced for those accused of terrorist offences, or questioned by the Serious Fraud Office or the police of Northern Ireland, but in 1994 the Criminal Justice and Public Order Act modified the right to silence for any person under police questioning in England and Wales.
The new act was based on the 1972 Criminal Law Revision Committee report and the Criminal Evidence (Northern Ireland) Order (1988). It rejected the reports of the 1991 Royal Commission on Criminal Justice and the Working Group on the Right to Silence. The supporters of the proposed act argued that the existing law was being exploited by 'professional' criminals, while innocent people would rarely execise their right. Changing the law would improve police investigations and adequate safeguards existed to prevent police abuse. Opponents claimed that innocent people may reasonably remain silent for many reasons, and that changing the law would introduce an element of compulsion and was in clear conflict with the existing core concepts of the presumption of innocence and the burden of proof.
The act allows for negative inferences "as seem proper" to be made if a defendant fails to mention a fact later relied on in defence that could have reasonably be given earlier, seen as evidence of later fabrication. Inferences can also be made from a refusal to account for "objects, substances or marks". These inferences are limited to facts that were later relied on and the circumstances of the defendant at the time of questioning had to be considered.
The act provides that a defendant cannot be convicted solely due to their silence, this position was partly reinforced by the European Court of Human Rights (Murray v. United Kingdom (1996)), which also required early access to legal advice, although the greater thrust of the case was lost. The inferences a jury can draw from silence or failure to mention facts are given to them as the English Model Directions , derived from R v. Cowan (1995).
There is little valid empirical data on the use of the right to silence during police questioning, the reports that do exist offer very differing figures on the use and the circumstances of the use of silence. It is generally believed that the majority of convictions are derived from, or substantially aided by, self-incrimination.
Comparison between civil and common law
Some proponents of inquisitorial justice argue that the right to silence as practiced by courts in an adversarial context is actually much more unfair to the defendant than the system in countries with specially trained inquisitorial judges. In common law procedural systems the defendant has a right to silence, but if he waives that right to silence he is subject to cross-examination by a professional advocate whose goal it is to present the defendant's statements in the worst possible light.
In most civil law jurisdictions where inquisitorial type procedures are established, the defendant may be compelled to make a statement, but this statement is not conducted under oath and the defendant is not subject to cross-examination by the prosecutor. This allows the defendant to explain their actions without having to duel with a lawyer or barrister, they only have to duel with the judge.
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