Privilege Against Self-incrimination
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In
criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...
, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution. Self-incrimination can occur either directly or indirectly: directly, by means of
interrogation Interrogation (also called questioning) is interviewing as commonly employed by law enforcement officers, military personnel, intelligence agencies, organized crime syndicates, and terrorist organizations with the goal of eliciting useful informa ...
where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person. In many
legal system A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...
s, accused criminals cannot be compelled to incriminate themselves—they may choose to speak to
police The police are Law enforcement organization, a constituted body of Law enforcement officer, people empowered by a State (polity), state with the aim of Law enforcement, enforcing the law and protecting the Public order policing, public order ...
or other authorities, but they cannot be punished for refusing to do so. There are 108 countries and
jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...
s that currently issue legal warnings to
suspect In law enforcement jargon, a suspect is a known person accused or suspected of committing a crime. Police and reporters in the United States often use the word suspect as a jargon when referring to the perpetrator of the offense (perp in dated U. ...
s, which include the
right to remain silent The right to silence is a legal principle which guarantees any individual the right to refuse to confession (law), answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in ...
and the right to legal counsel. These laws are not uniform across the world; however, members of the European Union have developed their laws around the EU's guide.


Australia

A limited right against self-incrimination exists at common law in Australia, but is not protected by the federal constitution or at state level where the majority of
criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...
prosecutions take place. In ''Sorby v Commonwealth'' (1983), the High Court affirmed that the common-law privilege against self-incrimination could only be abrogated by explicit statutory provisions. A number of federal statutes require individuals to provide truthful answers to questions posed by government agencies – including the
Australian Crime Commission The Australian Criminal Intelligence Commission (ACIC) is a law enforcement agency established by the Australian federal government on 1 July 2016, following the merger of the Australian Crime Commission (ACC) and CrimTrac. It has specialist i ...
,
Australian Competition & Consumer Commission The Australian Competition and Consumer Commission (ACCC) is the chief competition regulator of the Government of Australia, located within the Department of the Treasury. It was established in 1995 with the amalgamation of the Australian Tra ...
,
Australian Security Intelligence Organisation The Australian Security Intelligence Organisation (ASIO ) is the Intelligence agency, domestic intelligence and national security agency of the Australian Government, responsible for protection from espionage, sabotage, acts of foreign inte ...
and
Australian Securities & Investments Commission The Australian Securities and Investments Commission (ASIC) is an independent commission of the Australian Government tasked as the national corporate regulator. ASIC's role is to regulate company and financial services and enforce laws to pro ...
– and provide no exemption for self-incriminatory statements.


Canada

In Canada, similar rights exist pursuant to the ''
Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the '' Constitution Act, 1982''. The ''Char ...
''. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c) states: An important caveat in Canadian law is that this does not apply to a person who is not charged in the case in question. A person issued a subpoena, who is not charged in respect of the offence being considered, must give testimony. However, this testimony cannot later be used against the person in another case. Section 13 of the Charter states: Historically, in Canadian common law, witnesses could refuse to give testimony that would self-incriminate. However, section 5(1) of the ''
Canada Evidence Act The ''Canada Evidence Act'' () is an act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law. As law of evidence is largely set by common law, the act is not comprehensive ...
'' eliminated that absolute common law privilege by instead compelling witnesses to testify. In exchange, section 5(2) of the same act granted the witnesses immunity from having that evidence used against them in the future except in the case of
perjury Perjury (also known as forswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an insta ...
or
impeachment Impeachment is a process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. It may be understood as a unique process involving both political and legal elements. In Eur ...
. While these provisions of the ''Canada Evidence Act'' are still operational, they have been overtaken in their application by the immunities granted by sections 13 and 7 of the ''Canadian Charter of Rights and Freedoms''.


China

After the 1996 amendments to the Criminal Procedure Law, Article 15 states that "It shall be strictly prohibited to extort confessions by
torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons including corporal punishment, punishment, forced confession, extracting a confession, interrogational torture, interrogation for information, or intimid ...
, gather evidence by threat, enticement,
deceit Deception is the act of convincing of one or many recipients of untrue information. The person creating the deception knows it to be false while the receiver of the information does not. It is often done for personal gain or advantage. Deceit ...
, or other illegal means, or force anyone to commit self-incrimination." In 2012 the law was also re-amended to strengthen the
human rights Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...
protection of criminal suspects. China has since recognized the right against self-incrimination and forced confessions are prohibited by law. However, in practice as human rights violations in China continue to be committed, it is still common practice for police to use torture on suspects to obtain forced confessions. China's accession to the
United Nations The United Nations (UN) is the Earth, global intergovernmental organization established by the signing of the Charter of the United Nations, UN Charter on 26 June 1945 with the stated purpose of maintaining international peace and internationa ...
's
International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom ...
in 1998 also guarantees Chinese citizens the right against self-incrimination; however, China has not ratified the treaty.


India

In India, under Article 20 (3) of the Constitution, the defendant has the right against self-incrimination, but witnesses are not given the same right. A defendant must be informed of their rights before making any statements that may incriminate them. Defendants must not be compelled to give any statements. In the case that a defendant is pressured into giving a statement that is self-incriminating, the statement will not be admissible in a court of law. The Code of Criminal Procedure and the Indian Constitution give defendants the Right to Silence, i.e. the right to withhold self-incriminating information to authorities. Defendants must inform the authorities that they are exercising their Right to Silence; withholding information is not considered using their right to withhold information that can potentially be self-incriminating. In order to exercise their right to remain silent, the defendant must verbally and clearly state that they are doing so. For example, a defendant can say, "I am exercising my right to remain silent and will not be answering any further questions." Article 20 (3) does not pertain to those who made a confession willingly without being intimidated or coerced into making such statement.


United Kingdom


England and Wales

The right against self-incrimination originated in
England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
. In countries deriving their laws as an extension of the history of English
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination. The current statutory basis for the privilege against self-incrimination for defendants in criminal trials in England and Wales is the
Criminal Evidence Act 1898 In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Cane ...
s1(2) (as amended):
a person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings
Applying to England and Wales, the
Criminal Justice and Public Order Act 1994 The Criminal Justice and Public Order Act 1994 (c. 33) is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the law, most notably in the restriction and reduction of existing rights, clamping down on unlicensed ...
amended the
right to silence The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the worl ...
by allowing inferences to be drawn by the
jury A jury is a sworn body of people (jurors) convened to hear evidence, make Question of fact, findings of fact, and render an impartiality, impartial verdict officially submitted to them by a court, or to set a sentence (law), penalty or Judgmen ...
in cases where a suspect refuses to explain something, and then later produces an explanation. In other words, the jury is entitled to infer that the accused fabricated the explanation at a later date, since the accused refused to provide the explanation during the time of the police questioning. The jury is also free not to make such an inference.


Scotland

In Scots criminal and civil law, both common and statute law originated and operate separately from that in England and Wales. In
Scots law Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...
, the right to silence remains unchanged by the above, and juries' rights to draw inferences are severely curtailed. On January 25, 2018, the law in Scotland changed in regard to people being detained by police. These changes only affect people who are arrested after January 25, 2018. Those who are arrested have 'the right to remain silent' and are not obligated to answer questions asked by police. However, although someone being detained by police does not need to answer questions regarding the crime they are accused of, it is mandatory for detainees to answer basic questions of identity such as: name, date of birth, address, and nationality.


United States

The
Fifth Amendment to the United States Constitution The Fifth Amendment (Amendment V) to the United States Constitution creates several constitutional rights, limiting governmental powers focusing on United States constitutional criminal procedure, criminal procedures. It was ratified, along with ...
protects the accused from being forced to incriminate themselves in a crime. The Amendment reads:
No person ... shall be compelled in any criminal case to be a witness against himself ...
Additionally, under the Miranda ruling, a person also has the right to remain silent while in police custody so as not to reveal any incriminating information. In order to invoke this constitutional right to remain silent, a person must explicitly and unambiguously tell officers that they are exercising this right to remain silent. Therefore, staying silent without a prior exclamation that one is exercising this constitutional right does not invoke the right. In ''
Miranda v. Arizona ''Miranda v. Arizona'', 384 U.S. 436 (1966), was a landmark decision of the Supreme Court of the United States, U.S. Supreme Court in which the Court ruled that law enforcement in the United States must warn a person of their constitutional righ ...
'' (1966), the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
ruled that the Fifth Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect interrogated in custody of them their
right to remain silent The right to silence is a legal principle which guarantees any individual the right to refuse to confession (law), answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in ...
and their right to an attorney. Justice
Robert H. Jackson Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American lawyer, jurist, and politician who served as an associate justice of the U.S. Supreme Court from 1941 until his death in 1954. He had previously served as Un ...
further notes that "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances". ''Miranda'' warnings must be given before there is any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way". Suspects must be warned, prior to the interrogation, that they have the right to remain silent, that anything they say may be used against them in a court of law, that they have the right to have an attorney and if one cannot afford an attorney, one will be appointed to defend such person. Further, only after such warnings are given and understood, may the individual knowingly waive them and agree to answer questions or make a statement.''Miranda v. Arizona'', 384 U.S. 436, 86 S.Ct. 1602 (1966). It is also important to note that the Fifth Amendment protects certain types of evidence, specifically testimonial evidence, which are statements that are spoken by the person in question that are made under oath. For a list of other different types of evidence, see
Evidence (law) The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fa ...
.


Shift in court decision regarding handcuff usage

The United States Supreme Court rulings of ''
Miranda v. Arizona ''Miranda v. Arizona'', 384 U.S. 436 (1966), was a landmark decision of the Supreme Court of the United States, U.S. Supreme Court in which the Court ruled that law enforcement in the United States must warn a person of their constitutional righ ...
'' and '' Terry v. Ohio'' leave questions about the types of conduct that are appropriate for both the protection of the public, and criminal suspects' constitutional rights. The use of handcuffs on a suspect during a
Terry stop A ''Terry'' stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity. ("In ''Terry v. Ohio'', 392 U. S. 1, 30 (1968), we held that the police can stop and briefly ...
infringes on their Fourth and Fifth Amendment rights. During the action of handcuffing a suspect, a custodial environment is created, thereby invoking the information of that individual's
Miranda rights In the United States, the ''Miranda'' warning is a type of notification customarily given by police to criminal suspects in police custody (or in a custodial interrogation) advising them of their right to silence and, in effect, protection ...
. The Second Circuit Court maintained the notion that by utilizing handcuffs during a ''Terry'' stop, that stop is then automatically transformed into an arrest, thus warranting the reading of ''Miranda'' rights, up until the decision of ''US versus Fiseku''. In holdings of ''U.S. versus Fiseku'', the defendant argues that the officers’ use of handcuffs convert a Terry stop into an arrest without probable cause, thus violating his Fourth Amendment rights. The District Court ruled in disagreement with this matter, suggesting that there were unusual circumstances surrounding the investigatory stop, requiring the use of handcuffs in order to ensure the protection of those officers involved. This differs from Second Circuit court rulings of the past. In the case of ''U.S. vs. Newton'', a police officer is permitted to utilize handcuffs during a ''Terry'' stop if the officer has reason to believe that the detainee poses an immediate physical threat, and that by handcuffing the individual, the potential threat is defused in the least invasive means possible. In the case of ''U.S. vs. Bailey'', the Second Circuit court found the officers' original stop to be constitutional, but ruled that the events which transpired after handcuffing took place fell outside the realm of a constitutional ''Terry'' stop. This results from both suspects having already been patted down and deemed unarmed. At which point, the officers had no authority to handcuff either of these men, as they were already proven to be non-threatening. In both cases, the Second Circuit court made the determination that the use of handcuffs converted these stops into arrests, and were grounds for Miranda. The ruling of ''U.S. versus Fiseku'' disrupts this conversion trend by determining otherwise. The grounds for this holding are ambiguous, given the striking similarities between this court ruling and those of ''Newton'' and ''Bailey''. The new verdict could potentially be instituted to enable police officials to impede on citizens' constitutional rights as long as the technique being used is considered to be less intrusive than that of an officer pulling his or her gun on an unarmed suspect.


Truthful statements by an innocent person

An incriminating statement includes any statement that tends to increase the danger that the person making the statement will be accused, charged or prosecuted – even if the statement is true, and even if the person is innocent of any crime. Thus, even a person who is innocent of any crime who testifies truthfully can be incriminated by that testimony. The United States Supreme Court has stated that the Fifth Amendment privilege The U.S. Supreme Court has also stated:


See also

*
Privilege (evidence) In the law of evidence, a privilege is a rule of evidence that allows the holder of the privilege to refuse to disclose information or provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or ...
*
Right to silence The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the worl ...


References


Further reading

*{{cite book , title=Origins of the Fifth Amendment , last=Levy , first=Leonard W. , author-link=Leonard Levy , year=1986 , orig-year=1969 , publisher=Macmillan , location=New York , isbn=0-02-919580-2 , edition= Reprint , title-link=Origins of the Fifth Amendment Evidence law Criminal procedure Legal communication Criminal law de:Nemo tenetur se ipsum accusare