Right to Non Self-Incrimination

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Background

A right to non-self-incrimination exists in many jurisdictions. In the United States, this is called the right to remain silent. The court recognizes this right in several ways. First, the court has recognized the right to non-self-incrimination when it fashions common law privileges such as the attorney-client privilege, marital confidences and spousal testimonial privileges, and the priest-penitent privilege. In the United States a defendant is notified of this right by police through Miranda Warnings.

Because the defendant has a right to non-self-incrimination, she cannot be compelled to be a witness by the court.

International Law

The European Convention on Human Rights article 6 section 2 provides for the right of non-self-incrimination.[1] The right of non-self-incrimination includes the right to remain silent and the presumption of innocence.[2] The European Convention on Human Rights includes the right to non-self-incrimination to project defendants from improper compulsion, reducing the likelihood of a miscarriage of justice.[3]

Country Specific Examples

United States

A criminal defendant has the right to non-self-incrimination at trial. This right comes from the 5th Amendment's right to remain silent. [4] In addition to protecting the defendant from forced testimony, the 5th Amendment also protects the defendant from having the defendant's silence used as evidence of guilt.[5]

Kenya

A defendant in criminal proceedings has the right to refuse to give testimony that would incriminate him/her in the present trial or a subsequent trial. If questions seeking to elicit incriminating evidence are raised during trial, counsel for the accused must raise timely objections to prevent any response that may have a prejudicial effect against the defendant.

References

  1. European Convention on Human Rights
  2. Stefan Lorenzmeier, The Right to a Fair Trial in Europe? -- Procedural Guarantees Under the European Convention on Human Rights, Journal of the Institute of Justice and International Studies 40, 46 (2007).
  3. Stefan Lorenzmeier, The Right to a Fair Trial in Europe? -- Procedural Guarantees Under the European Convention on Human Rights, Journal of the Institute of Justice and International Studies 40, 46 (2007).
  4. See Malloy v. Hogan, 378 U.S. 1, 6 (1964) (extending the 5th Amendment's protection against compulsory self-incrimination in court extends to the states through the 14th Amendment).
  5. Griffin v. California, 380 U.S. 609, 615 (1965)("We take that in its literal sense and hold that the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.").

See Rights of the Accused