Right to Silence

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Background

In a landmark case decided by the United States Supreme Court, Miranda v. Arizona, the court ruled that when a suspect is taken into police custody, prior to any interrogation by the police, the suspect must be provided with a warning advising the suspect of his constitutional rights secured through the 1st, 5th and 6th Amendments. These are often called the "Miranda Rights" or the "Miranda Warning." If the police fail to give these warnings or the suspect doesn't knowingly and voluntarily waive these rights, any statements the suspect makes cannot be used at trial. The rights are as follows:

  1. You have the right to remain silent.
  2. Anything you say can and will be used against you in a court of law.
  3. You have the right to a lawyer.
  4. If you cannot afford a lawyer one will be appointed for you.

Miranda rights are only required to be read to a suspect, when the suspect is in the custody. A suspect is in custody if his liberty is constrained in such a way that a reasonable person would not free to leave. The rights are also only required to be read to a suspect when a suspect is interrogated by the police. Interrogation need not be direct questions. It occurs when the police make statements that could reasonably be expected to elicit an incriminating response. The Miranda decision also mandated that if a suspect is being questioned by the police, and the suspect requests a lawyer, the police must stop the questioning until the suspects lawyer arrives. If a suspect invokes his right to remain silent all questioning related to the particular crime must stop.

International Sources

There is no express "right to silence" guaranteed in any international instruments like the the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESR).

In the international sphere, the closest that exists to a right to silence can be found in:

  • ICCPR Article 14 (3) (g) -


  • UN Convention on the Rights of the Child, Article 40 (2) (b) (iv) -



Examples of the right to silence

Australia

The right to silence derives from common law. According to this, neither the judge nor the jury are allowed to draw any adverse inferences about the defendant's culpability, where the latter refuses to answer police questions.

The common law position is reinforced by legislative provisions:

  • Section 464J of the Crimes Act 1958 (Vic)
  • Section 89 of the Evidence Act 1995 (NSW)

However, in the case of Petty v R (1991) 173 CLR 95 it was held that where a defendant answers some of the police questions but not others, an inference could sometimes be drawn about those refused to answer

India

In the Indian legal system, Article 22(1) of the Constitution of India provides that the arrested person should be informed as soon as possible about the grounds of his arrest and he shall not be denied the right to consult with and to be defended by a legal practitioner of his choice. Article 20(3) of the Constitution of India, which is based on the 5th Amendment of the U.S. Constitution made in 1791 provides that "no person accused of any offense shall be compelled to be a witness against himself."

Kenya

Kenya Code of Criminal Procedure: Recording of plea agreement by court.

    • (a) the right to
      • (iii) remain silent and not to testify during the proceedings

Tanzania

Criminal Procedure Act, 1985


Important Cases

Rights of the accused

Table of Contents

Rights/ Protections from Police

Rights during Detention

Rights at Trial

Sentencing

Rights in Prison