The right to remain silent, as it is officially called, is a legal right of any person subjected to police interrogation or summoned to go to trial in a court of law. 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.

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 faced the prospect of one of perjury (which was believed to be a mortal sin) (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 honor their oath). 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. 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 practise 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 eighteenth century. But by the nineteenth 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 Britain and the Commonwealth countries (and including in Ireland, a former member, where it has been diluted slightly), the right to silence has remained enshrined in the common-law tradition inherited from England. In the US, which also inherited its legal tradition from England, it 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 the Constitution, the others in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth countries like Australia and New Zealand, where police officers are still required at common law to issue "Miranda-style rights" (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. Like the US, 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 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 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. 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. However, direct testimonial evidence gained from this coercive questioning cannot be used in any subsequent criminal trial of the person providing the evidence.

Canada

The right to silence is protected under section 7 and section 11 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.

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.

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. 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).

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.

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.

Pakistan

Article 13 of the 1973 Constitution of Pakistan protects a person from self-incrimination .

South Africa

According to section 35 of the 1996 Constitution ("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.

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 questioned while in police custody 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. 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 parishoner.)

There is a glaring 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 in the United States rely heavily upon the subtle intimidation of their position and power and the ignorance of citizens to their rights in order to induce people into incriminating themselves such that they are then able to arrest them. 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.

Some countries including Canada have carefully avoided such contradictions by clearly making inadmissible in court any information/statements provided by the suspect prior to advisement of their rights to silence and representation.

United States Military and the Uniform Code Of Military Justice

In the United States, military personnel are covered by the Uniform Code of Military Justice, or UCMJ, and 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.

References

1. Major Crime (Investigative Powers) Act 2004
2. Criminal Justice and Public Order Act 1994, s. 38.
3. See the specimen direction of the Judicial Studies Board.
4. Regulation of Investigatory Powers Act 2000, s. 49
5. Regulation of Investigatory Powers Act 2000, s. 53
6. http://www.paksearch.com/Government/LAWS/CONSTITUTION/COPII.html
7. Raffel v. United States, 271 U.S. 494 (1926)
8. http://supreme.justia.com/us/271/494/case.html
9. Miranda v. Arizona, SCOTUS, 1966
10. 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
11. In Re Grand Jury Subpoena to Sebastien Boucher No. 2:06-mj-91, 2009 WL 424718 - Feb. 19, 2009
12. http://federalevidence.com/pdf/2009/03-March/InreBoucherII.pdf
13. http://usmilitary.about.com/od/justicelawlegislation/l/aa31rights.htm
14. http://usmilitary.about.com/library/milinfo/ucmj/blart-31.htm
15. http://usmilitary.about.com/od/justicelawlegislation/l/aa31rights.htm
16. Military Judicial Rules of Procedure, Uniform Code of Military Justice - 1951 as amended

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

See also

• Taking the Fifth
• Nemo tenetur se detegere
• Privilege