right to silence

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right to silence

the idea that a person should not be able to incriminate himself simply by saying nothing at all. In England and Wales the right has been known for some time, even although there was no constitutional provision. The history is not as might be expected. Originally all witnesses could be interrogated, and although this was stopped in the 17th century, the accused was denied the right to give evidence in his own defence. This was changed by the Criminal Evidence Act 1898. In the 20th century the position was arrived at first under the Judges' Rules of 1912 and latterly under the Police and Criminal Evidence Act 1984 that a suspect had to be cautioned that he need not answer any questions put to him. However, in terms of the Criminal Justice and Public Order Act 1994 (similar to the Criminal Evidence (Northern Ireland) Order 1988), courts are permitted to comment on a failure to give evidence. As a result, the caution given to suspects has been changed to warn the suspect of this fact. It has been held that the Northern Ireland rules did not infringe the EUROPEAN CONVENTION ON HUMAN RIGHTS albeit the Convention has been interpreted in the past to the effect that the right to silence is an inherent part of the protection available under Article 6 of the Convention. The right has been further reinforced in the UK by the Human Rights Act 1998.

In Scotland, the history is similar, and the principle has been described as sacred and inviolable. There are no statutory measures such as exist in England, but the common law caution administered warns suspects of their right and a detained person must be warned that he need only give his name and address. So far as comment to the jury is concerned, the Scots courts have always been able to comment but subject to restraint and only in special and appropriate circumstances. Since 1995 the prosecutor has been able to comment.

In the USA, the use of the Fifth and Fourteenth Amendments have long given constitutional protection to citizens - a person does not have to answer a question if, truly answered, it would tend to incriminate him. Being a constitutional provision, the right is more general and of wide influence in matters outside the actual courtroom. Suspects have to be cautioned and informed of their right. See EXCLUSIONARY RULE.

Collins Dictionary of Law © W.J. Stewart, 2006
References in periodicals archive ?
Luqman had elected to uphold his right to silence during the trial, upon which the defence had called for psychiatrist Yeoh Chia Minn to testify.
Milan prosecutors questioned him for about an hour on Monday but he exercised his right to silence, said two sources familiar with the matter.
Slamming Rahul Gandhi for his silence over the deal, Jaitley said, "The Right to Silence is available to an accused, not to a Prime Ministerial aspirant."
In October, he exercised his right to silence after being summonsed for questioning.
In October, he exercised his right to silence after being summoned for questioning by a state prosecutor over the allegations.His resignation brought to eight the number of bishops who have stepped down since all of the country's 34 bishops offered their resignations en masse during an emergency meeting with the pope last May over allegations of a cover-up.
"Mr Barry instructs the reason for that post is that he was reflecting his belief that soldiers, like any witnesses, are entitled to exercise their right to silence on the grounds of potential self-incrimination should they give evidence.
'You have the right to silence. Anything you say may be used in evidence against you.' 'Damn it!
The court said that"every individual/accused has a right to silence".
'So you might as well invoke the right to silence. When a person invokes a constitutional right, you cannot infer anything from them.
Salah Abdeslam's lawyer, Frank Berton, said his client had invoked his right to silence.
Instead of having a protected right to silence, the suspect is forced to decide between three terrible choices: give a statement and implicate himself; lie, and be charged with perjury; or refuse to talk--as the Constitution says he can!--but have that silence used against him to prove his guilt.