NCJ Number
62395
Date Published
1978
Length
20 pages
Annotation
THE RATIONALE AND EXISTING MECHANISMS FOR ASSURING AN ACCUSED'S RIGHT TO SILENCE ARE DISCUSSED, AND LAW REFORM PROPOSALS BEARING UPON THE RIGHT TO SILENCE ARE ASSESSED, WITH PARTICULAR REFERENCE TO ENGLAND.
Abstract
AN ACCUSED'S RIGHT TO SILENCE IS BASED UPON THE ADVERSARIAL LEGAL SYSTEM'S INSISTENCE THAT THE PROSECUTION PROVE THE GUILT OF THE PERSON CHARGED WITHOUT REQUIRING TESTIMONY OR EVIDENCE DIRECTLY FROM THE DEFENDANT. VARIOUS EFFORTS, NAMELY, CAUTIONS ABOUT MAKING ANY STATEMENTS AND ADVICE ABOUT SECURING THE SERVICES OF A LAWYER BEFORE MAKING ANY STATEMENTS, HAVE BEEN TRIED TO IMPLEMENT THE RIGHT TO SILENCE. STUDIES, HOWEVER, HAVE REVEALED THE FOLLOWING FACTS RELEVANT TO THE EFFECTIVENESS OF THE RIGHT-TO-SILENCE DOCTRINE: (1) MOST DEFENDANTS PLEAD GUILTY; (2) COMMON LAW ACCEPTS A GUILTY PLEA WITHOUT PROOF; (3) THE SYSTEM EXERTS STRONG PRESSURE TO INDUCE GUILTY PLEAS; (4) MOST WHO PLEAD GUILTY DO NOT RELY ON THE RIGHT TO SILENCE; (5) THE PROBABILITY OF A CONFESSION APPEARS TO BE UNRELATED TO THE PRESENCE OR ABSENCE OF A CAUTION; (6) A DEFENDANT'S CONVICTION PROBABLY DOES NOT DEPEND ON THE RESULTS OF QUESTIONING; (7) SYSTEMATIC INTERROGATION OF SUSPECTS IS NOT COMMON; (8) WHEN THE ACCUSED DOES REMAIN SILENT, THE JURY OR JUDGE MAY DRAW ADVERSE INFERENCES FROM THIS, EVEN THOUGH PROHIBITED; AND (9) THE RIGHT TO SILENCE HAS RECENTLY BEEN QUALIFIED SOMEWHAT BY THE COURTS. THESE FOREGOING FINDINGS WOULD INDICATE THAT THE RIGHT TO SILENCE IS OF LITTLE, IF ANY, PRACTICAL VALUE. THE BRITISH CRIMINAL LAW REVISION COMMITTEE'S ATTENTION TO REFORM IN THIS AREA, WHICH PROPOSED THAT ADVERSE INFERENCES FROM A DEFENDANT'S SILENCE BE ALLOWED, MAY THUS MAKE LITTLE DIFFERENCE IN THE FUNCTIONING OF THE CRIMINAL JUSTICE SYSTEM. IF THE DOCTRINE OF THE RIGHT TO SILENCE IS TO BE MAINTAINED AND ENFORCED, THE ONLY PRACTICAL MECHANISM WOULD APPEAR TO BE THE GUARANTEE OF THE ADVICE OF COUNSEL BEFORE ANY CONVERSATIONS MAY TRANSPIRE BETWEEN POLICE AND THE ACCUSED. TO PROVIDE SUCH ADVICE WILL BE COSTLY IN TERMS OF ATTORNEY TIME AND REDUCED POLICE EFFECTIVENESS. THE COMMISSION SHOULD QUANTIFY SUCH COSTS THROUGH EMPIRICAL RESEARCH TO DETERMINE WHETHER THE RIGHT TO SILENCE IS WORTH PROTECTING IN PRACTICE AND NOT ONLY IN THEORY. FOOTNOTES ARE PROVIDED. (RCB)