Right To Silence - History

History

Neither the reasons nor the history behind the right to silence are entirely clear. The Latin brocard 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 were forced to choose between committing the mortal sin of perjury (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 honour their oath).

After the parliamentary revolutions of the late 17th century, 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 practice 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 18th century. But by the 19th 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 the United Kingdom and countries formerly part of the British Empire (such as Commonwealth nations, the United States and the Republic of Ireland) the right to silence has remained enshrined in the common-law tradition inherited from England. In the U.S. the right 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 an entrenched constitution, the other in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth nations like Australia and New Zealand, where police officers are still required at common law to issue "Miranda-style" warnings (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.

As in the U.S., 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 19th century 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 "Miranda 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.