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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 world's legal systems. The right covers a number of issues centered on the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid
self-incrimination In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incriminati ...
or the right to remain silent when questioned. The right may include the provision that adverse inferences cannot be made by the judge or jury regarding the refusal by a
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...
to answer questions before or during a trial, hearing or any other legal proceeding. This right constitutes only a small part of the defendant's rights as a whole. The origin of the right to silence is attributed to Sir
Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...
's challenge to the
ecclesiastical court An ecclesiastical court, also called court Christian or court spiritual, is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages, these courts had much wider powers in many areas of Europe than be ...
s and their ''ex officio'' oath. In the late 17th century, it became established in the law of England as a reaction to the excesses of the royal inquisitions in these courts. In the United States, informing suspects of their right to remain silent and of the consequences for giving up that right forms a key part of the
Miranda warning 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 f ...
.


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 The Star Chamber (Latin: ''Camera stellata'') was an English court that sat at the royal Palace of Westminster, from the late to the mid-17th century (c. 1641), and was composed of Privy Counsellors and common-law judges, to supplement the jud ...
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 A mortal sin ( la, peccatum mortale), in Catholic theology, is a gravely sinful act which can lead to damnation if a person does not repent of the sin before death. A sin is considered to be "mortal" when its quality is such that it leads to ...
of
perjury Perjury (also known as foreswearing) 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 inst ...
(if they lied under oath to protect themselves), harsh punishment for
contempt of court Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the cou ...
(if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honour their oath). Sir
Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...
's challenge to the ecclesiastical courts and their ''ex officio'' oath is seen as the origin of the right to silence. With his decision that common law courts could issue writs of prohibition against such oaths and his arguments that such oaths were contrary to the common law (as found in his ''Reports'' and ''Institutes''), Coke "dealt the crucial blow to the oath ''ex officio'' and to the High Commission". 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 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 John Henry Wigmore (1863–1943) was an American lawyer and legal scholar known for his expertise in the law of evidence and for his influential scholarship. Wigmore taught law at Keio University in Tokyo (1889–1892) before becoming the first ...
, "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 The Restoration of the Stuart monarchy in the kingdoms of England, Scotland and Ireland took place in 1660 when King Charles II returned from exile in continental Europe. The preceding period of the Protectorate and the civil wars came to b ...
(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 believed to be guilty and was sentenced. 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 were 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 countries formerly part of the
British Empire The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
(such as
Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
nations, the United States and the Republic of Ireland) the right to silence has remained enshrined in the common-law tradition inherited from England, although it no longer applies in England and Wales, where remaining silent can be considered a sign of guilt by juries. NB Scots law, which is not derived from English law but wholly separate, still upholds the full right to silence. In the US, the right existed prior to the
American Revolution The American Revolution was an ideological and political revolution that occurred in British America between 1765 and 1791. The Americans in the Thirteen Colonies formed independent states that defeated the British in the American Revoluti ...
. 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. The right to silence spread to many nations of the British Empire. 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 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 arrested persons that they do not have to answer any questions but that whatever they do say (or do) can be used in court as evidence. The police must also determine whether the arrested persons understand these rights. Any failure to do so can jeopardize a criminal prosecution. While differing slightly from 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 by audio or video record. Australian police all wear chest cams as part of their standard issue, and turn them on with every interaction, so that they record and provide such evidence. As in the US, suspects in some Commonwealth countries are also entitled to have counsel present during questioning. In the United Kingdom, laws introduced, have the suspects 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 In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal exp ...
, 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 pretrial silence for the first time. The key American case of '' Bram v. United States'' paved the way for the right to be extended to pretrial 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 An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
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 had an increasing universalisation of certain
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...
protections.


Worldwide

Warnings of a right to remain silent are given in approximately 108 nations around the world.


Australia

Australia has no constitutional protection for the right to silence, but it is broadly recognized by State and Federal Crimes Acts and Codes and is regarded by the courts as an important common law right and a part of the privilege against self-incrimination. In general, criminal suspects in Australia have the right to refuse to answer questions posed to them by police before trial and to refuse to give evidence at trial. However a person must provide their full name, address, place of birth, and date of birth if asked to by police. No other question has to be answered. As a general rule judges cannot direct juries to draw
adverse inference Adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence. It is part of evidence codes based on common law in various countries. According to Lawvibe, "the 'adverse inference' can ...
s from a defendant's silence (''Petty v R'') but there are exceptions to this rule, most notably in cases which rely entirely on
circumstantial evidence Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact—such as a fingerprint at the scene of a crime. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need f ...
which it is only possible for the defendant to testify about (''Weissensteiner v R''). This exception has been abolished in Victoria by sections 42 and 44 of the ''Jury Directions Act 2015''. The right does not apply to corporations (''EPA v Caltex''). Within Australia, the right to silence derives from common law. The basic position amongst the states is that neither the judge nor the jury is permitted to draw any
adverse inference Adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence. It is part of evidence codes based on common law in various countries. According to Lawvibe, "the 'adverse inference' can ...
about the defendant's culpability, where he/she does not answer police questions PS_v_R_(2000)_199_CLR_620_..._overturning_Jones_v_Dunkel_ PS_v_R_(2000)_199_CLR_620_..._overturning_Jones_v_Dunkel_[1959101_CLR_298">959.html"_;"title="PS_v_R_(2000)_199_CLR_620_..._overturning_Jones_v_Dunkel_[1959">PS_v_R_(2000)_199_CLR_620_..._overturning_Jones_v_Dunkel_[1959101_CLR_298_While_this_is_the_common_law_position,_it_is_buttressed_by_various_legislative_provisions_within_the_states._For_instance_s.464J_of_the_Crimes_Act_1958.html" ;"title="959101_CLR_298.html" ;"title="959.html" ;"title="PS v R (2000) 199 CLR 620 ... overturning Jones v Dunkel PS_v_R_(2000)_199_CLR_620_..._overturning_Jones_v_Dunkel_[1959101_CLR_298">959.html"_;"title="PS_v_R_(2000)_199_CLR_620_..._overturning_Jones_v_Dunkel_[1959">PS_v_R_(2000)_199_CLR_620_..._overturning_Jones_v_Dunkel_[1959101_CLR_298_While_this_is_the_common_law_position,_it_is_buttressed_by_various_legislative_provisions_within_the_states._For_instance_s.464J_of_the_Crimes_Act_1958">''Crimes_Act''_1958_(Vic)_and_s.89_of_the_''Evidence_Act''_1995_(NSW). However,_s89A_of_the_Evidence_Act_(NSW)_operates_to_allow_adverse_inferences_to_be_drawn_from_a_failure_to_mention,_when_questioned,_something_which_the_subject_later_relies_upon_in_Court_and_which_he/she_ought_reasonably_have_been_aware_of_at_the_time_of_questioning.__This_inference_can_only_be_drawn_if_the_subject_has_been_given_the_special_caution,_which_is_a_caution_in_addition_to_the_usual_caution_and_the_subject_consults_with_an_Australian_Legal_practitioner_in_persona_so_as_to_fully_understand_the_effect_of_the_special_caution.__In_NSW_a_subject_has_the_right_to_a_lawyer_being_present_in_a_police_interrogation_but_they_do_not_have_the_right_to_have_a_lawyer_provided_for_them,_therefore_a_lawyer_will_only_attend_if_the_subject_can_afford_private_legal_counsel.__Therefore,_the_subject_can_prevent_the_invocation_of_s89A_by_receiving_legal_advice_over_the_phone_or_choosing_not_to_have_a_lawyer_present_(assuming_they_can_afford_one). It_has_also_been_upheld_by_the_High_Court_of_Australia.html" ;"title="959">PS v R (2000) 199 CLR 620 ... overturning Jones v Dunkel [1959101 CLR 298">959.html" ;"title="PS v R (2000) 199 CLR 620 ... overturning Jones v Dunkel [1959">PS v R (2000) 199 CLR 620 ... overturning Jones v Dunkel [1959101 CLR 298 While this is the common law position, it is buttressed by various legislative provisions within the states. For instance s.464J of the Crimes Act 1958">''Crimes Act'' 1958 (Vic) and s.89 of the ''Evidence Act'' 1995 (NSW). However, s89A of the Evidence Act (NSW) operates to allow adverse inferences to be drawn from a failure to mention, when questioned, something which the subject later relies upon in Court and which he/she ought reasonably have been aware of at the time of questioning. This inference can only be drawn if the subject has been given the special caution, which is a caution in addition to the usual caution and the subject consults with an Australian Legal practitioner in persona so as to fully understand the effect of the special caution. In NSW a subject has the right to a lawyer being present in a police interrogation but they do not have the right to have a lawyer provided for them, therefore a lawyer will only attend if the subject can afford private legal counsel. Therefore, the subject can prevent the invocation of s89A by receiving legal advice over the phone or choosing not to have a lawyer present (assuming they can afford one). It has also been upheld by the High Court of Australia">High Court in the case of ''Petty v R'' (1991) 173 CLR 95. However, where a defendant answers some police questions, but not others, an inference may sometimes be drawn about the questions he refused to answer. (See ''Coldrey'', below.) Where a defendant refuses to speak to the police, but then speaks to an undercover member of the police, the court is likely to exclude that evidence to ensure that the police do not avoid their limitations. However, if a defendant speaks to a person who is not a member of the police, and who is fitted with a listening device, that evidence would be admitted.[Queen v Swaffield; Pavic v The Queen (1998) 192 CLR] Australian research indicates that very few suspects actually refuse to speak. Stevenson's research (see below for citation) indicates that only 4% of suspects who are subsequently charged and tried in the
District Court of New South Wales The District Court of New South Wales is the intermediate court in the judicial hierarchy of the Australian state of New South Wales. It is a trial court and has an appellate jurisdiction. In addition, the Judges of the Court preside over a ra ...
in Sydney remain silent during interviews. The Victorian DPP found that 7–9% of suspects refused to answer police questions. A number of states have conducted enquiries into the adoption of the English changes set out in 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 r ...
. All states have rejected such change. As the NSW Report said: It is also important to note that anything said to an Australian police member should be corroborated, especially by way of video or audio tape. If it is not so corroborated it will be admitted only under exceptional circumstances, S.464H (2)(a) of the ''Crimes Act'' 1958 (Vic), and where the circumstances, on the balance of probabilities, justify the reception of the evidence, S.464H (2)(b) of the ''Crimes Act'' 1958 (Vic). While initially the police were insulted by this ruling most have now come to find it useful as a way of proving that they did not invent a false, verbal confession, never made by an accused (a practice called "verballing" an accused). There are numerous statutory abrogations of the right, particularly in the area of bankruptcy. It is also not available to witnesses testifying before a Royal Commission. There are also abrogations of the right in recent Federal anti-terrorism and Victorian organised crime Acts. Each of these acts set up coercive questioning regimes which operate outside the normal criminal processes. Direct testimonial evidence gained from this coercive questioning cannot be used in any subsequent criminal trial of the person providing the evidence, however a witness who testifies in his defense at a subsequent criminal trial who provides a different testimony to that during the questioning may face prosecution for perjury.


New South Wales

The state of
New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , e ...
passed the ''Evidence Amendment (Evidence of Silence) Act 2013'' which allows the judiciary to direct the jury to draw unfavourable inferences against a defendant who failed or refused to mention a fact during police questioning that they later rely on in court in a bid to be found ''not'' guilty. The law strictly applies to those over the age of 18 and who have an Australian legal practitioner physically present and available at the time of questioning. The change is designed to reflect reforms made in the United Kingdom in 1994 and only applies to indictable offences that carry a penalty of five or more years imprisonment. The introduction of the ''Evidence Amendment (Evidence of Silence) Act 2013'' sparked some controversy and concern amongst legal scholars and practitioners. The current caution used in
New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , e ...
is:


Queensland

The current caution used in
Queensland ) , nickname = Sunshine State , image_map = Queensland in Australia.svg , map_caption = Location of Queensland in Australia , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , established_ ...
is:


Bangladesh

Article 33 of the Constitution of Bangladesh discusses the rights of the arrested and detained; no right to silence is mentioned either in the Constitution or the Bangladesh Penal Code, except in Article 35(4) of the Constitution, which protects individuals from self-implication. To facilitate protection from self-implication, Bangladesh Penal Code makes an exception in cases of confessions, in which case, the Magistrate obtaining a confession under Section 164 ''must'' explain the confessor's right to silence, and must attest to the fact that the rights of the confessor were read out to him and explained, and the confessor waived his right of silence. Article 33 of the Constitution of Bangladesh compels arresting authorities to inform the accused of the accusations brought against him before he is detained, and that the detained must be presented to the nearest court within 24 hours. Exceptions to this rule include preventive detention and the arrest of an enemy alien. Right to counsel is an inalienable right, but the arresting officer need not explicitly state it to the detained. Article 35(4) of the Constitution protects individuals from self-implication. Therefore, warnings ''must'' be read out to the detained person if he wants to voluntarily confess to the charges; in this case, a Magistrate must read and explain the confessor's right to silence and protection from self-implication, and attest to the fact that the rights of the confessor were read out to him and explained, and the confessor waived his right of silence.


Canada

In Canada, the right to silence is protected under the common law confessions rule, and section 7 and section 11(c) of the
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
. The accused may not be compelled as a witness against himself in
criminal proceedings Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
, and therefore only voluntary statements made to
police The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and ...
are admissible as
evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...
. Prior to an accused being informed of their right to
legal counsel A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicitor ...
, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible. These rights to silence exist only when the suspect is knowingly dealing with a person in authority. When the subject is unaware he is dealing with the police, such as in the case of an undercover operation, these protections do not exist unless the authority figure actively elicits a statement. Statements made to police officers during undercover operations almost always comply with the confessions rule unless the conduct of the police was deemed so egregious that it would shock the community. However, section 7 rights might still become implicated in the case of elicitation, after which a court could only admit the statement if it's satisfied that it would not bring the administration of justice into disrepute. Under the Charter, an arrested person has the right: * To be informed promptly of the reasons therefor. * To retain and instruct counsel without delay and be informed of that right. * To have the validity of the detention determined by way of
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
and to be released if the detention is not lawful. The Canadian Charter warning reads (varies by police service): "You are under arrest for _________ (charge); do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you do say can and will be used in court as evidence. Do you understand? Would you like to speak to a lawyer?" A more detailed version:
I am arresting you for (charge). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid
duty lawyer A duty solicitor, duty counsel, or duty lawyer, is a solicitor whose services are available to a person either suspected of, or charged with, a criminal offence free of charge, if that person does not have access to a solicitor of their own and us ...
who can give you legal advice in private. This advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand? Do you want to call a lawyer? You are not obliged to say anything, but anything you do say may be given in evidence in court.
Section 14 of the Charter further provides that a translator must be made available so that the person can understand the proceedings against them. This right to a translator extends to the deaf. In
Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirteen ...
, the Charter warning is read in
Canadian French Canadian French (french: français canadien) is the French language as it is spoken in Canada. It includes multiple varieties, the most prominent of which is Québécois (Quebec French). Formerly ''Canadian French'' referred solely to Quebec ...
. In
New Brunswick New Brunswick (french: Nouveau-Brunswick, , locally ) is one of the thirteen provinces and territories of Canada. It is one of the three Maritime provinces and one of the four Atlantic provinces. It is the only province with both English and ...
, and
Ottawa Ottawa (, ; Canadian French: ) is the capital city of Canada. It is located at the confluence of the Ottawa River and the Rideau River in the southern portion of the province of Ontario. Ottawa borders Gatineau, Quebec, and forms the core ...
the warning is read in either English or French, and the officer is required to ask the person's language of preference before issuing the warning. While Section 10b of the Charter guarantees the right to be provided legal counsel, Canadian law only entitles criminal suspects under the age of 18 to have counsel actually be present throughout the entire interrogation. Once an adult suspect has asserted their right to counsel, the police are obliged to hold off in attempting to obtain evidence until the suspect has had a reasonable opportunity to contact legal counsel, however after that opportunity has been exhausted there is no guarantee of further access until the interrogation is over. Also, in Canada even if the suspect directly asserts his decision to remain silent, the police may continue to interrogate them. There is no automatic exclusion of evidence obtained after such an assertion, however it risks breaching the confessions rule if a court finds that it created reasonable doubt to whether the confession was obtained under "oppressive conditions", a determination which is made upon the totality of evidence. A leading case on the right to silence in Canada is R. v. Singh (163 C.R.R. (2d) 280), in which a person in police custody invoked his right to silence 18 times yet was continually questioned. In a 5-4 majority, the Canadian Supreme Court ruled that there was no ancillary right under section 7 to have the police stop questioning a suspect after the asserted their right to silence. The court did, however, acknowledge that repeated police questioning after a defendant has asserted their right to silence raises doubts regarding the admissibility of further evidence under the confessions rule, though that was not the finding in the case. Another Supreme Court case, R. v. Hodgson, clarified that the right to silence only applied to the state and could not be used to exclude confessions made to private actors. Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the
witness box A courtroom is the enclosed space in which courts of law are held in front of a judge. A number of courtrooms, which may also be known as "courts", may be housed in a courthouse. In recent years, courtrooms have been equipped with audiovisual ...
and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. Section 13 of the
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
guarantees that witnesses may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence, but only where that evidence is to be used against a third party. In the past most cases, except for certain sex offences or where the victims were children, spouses could not be compelled to testify against each other, however after Bill C-32, The Victim's Bill of Rights Act, this is no longer the case. However, spouses retain the right to assert privilege, and to refuse to answer questions about communications during the marriage.


China

The right of silence is not guaranteed by law in China. Article 93 of the Criminal Procedure Law states that "The criminal suspect shall answer the investigators' questions truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to the case." But since the 1996 amendments to the Criminal Procedure Law, Article 15 states that "It shall be strictly prohibited to extort confessions by torture, gather evidence by threat, enticement, deceit, or other illegal means, or force anyone to commit self-incrimination." In 2012 the law was also re-amended to include clauses that protect human rights. China has recognized the right against self-incrimination and forced confessions are prohibited by law. The signing of the
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 the treaty has not been ratified in China.


Czech Republic

The Czech Republic protects the right to silence by two clauses in the Charter of Fundamental Rights and Freedoms. Article 37, clause 1 states that "everyone has the right to refuse a statement if he/she would cause risk of prosecution of himself/herself or a close person". In Article 40, clause 4, it is stated that "an accused person has the right to refuse a statement; he/she must not be deprived of this right in any way".


European Union

Within the
European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been ...
, a gradual process of harmonising the laws of all the states of the Union has resulted in the adoption a common letter of rights that will apply to everyone across the European Union. The agreed law—also known as "the Reding Rights" taking the name of the EU Justice Commissioner
Viviane Reding Viviane Adélaïde Reding (born 27 April 1951) is a Luxembourgish politician and a former Member of the European Parliament (MEP) from Luxembourg. She is a member of the Christian Social People's Party, part of the European People's Party. She ...
, who has proposed and negotiated the measure to become law across the entire European Union—will mean that suspects in the European Union will once detained receive a "Letter of Rights listing their basic rights during criminal proceedings". The European law ensures that people suspected of a criminal offence receive adequate information about their basic rights during criminal proceedings. These are the right to a lawyer; to be informed of the charge; to interpretation and translation for those who do not understand the language of the proceedings; the right to remain silent and to be brought promptly before a court following arrest. In particular, the law includes five innovations:
Suspects will be informed of their rights following the arrest; They will be given a "letter of rights" spelling out their rights in writing; The letter of rights will be easy to understand, without legal jargon; It will be made available in a language the suspect understands; It will contain practical details about the person's rights.
These rights are contained in a ''letter of rights''—"the Reding Rights"—a printed document given to suspects after they are detained and before interrogation. The European Union law, proposed in July 2010 by the
European Commission The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body ...
, was adopted by the
European Parliament The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
and Council in December 2011. The European Union Directive was published officially on 1 June 2012 in the Official Journal of the European Union L 142, 1 June 2012. It became operational across the European Union by 2 June 2014.


European Convention on Human Rights

The concept of right to silence is not specifically mentioned in the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
but the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a c ...
has held that
the right to remain silent under police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under Article 6.


France

In France, any person brought in police custody ( "Garde à vue") must be informed of the maximal duration of the custody, and a number of rights, in a language that this person understands. Among these rights are: the possibility of warning a relative or employer of the custody, that of asking to be examined by a physician, and that of discussing the case with a lawyer . The French Code of Criminal Procedure (art. L116) makes it compulsory that when an investigating judge hears a suspect, he must warn him that he has the right to remain silent, to make a statement, or to answer questions. A person against which suspicions lay cannot legally be interrogated by justice as an ordinary witness. At the actual trial, a defendant can be compelled to make a statement. However, the code also prohibits hearing a suspect under oath; thus, a suspect may say whatever he feels fit for his defense, without fear of sanction for
perjury Perjury (also known as foreswearing) 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 inst ...
. This prohibition is extended to the suspect's spouse and members of his close family (this extension of the prohibition may be waived if both the
prosecution A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
and the
defence Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military), forces primarily intended for warfare * Civil defense, the organizing of civilians to deal with emergencies or enemy attacks * Defense industr ...
counsel A counsel or a counsellor at law is a person who gives advice and deals with various issues, particularly in legal matters. It is a title often used interchangeably with the title of ''lawyer''. The word ''counsel'' can also mean advice given ...
agree to the waiver). Since 15 April 2011, any person held by the police has new rights: * The person is immediately informed by a police officer, or in the presence of one, in a language that he can understand, that (Article 3): ** he has the right to ask assistance of a lawyer (63-3-1 to 63-4-3 of Penal Procedure code); ** he has the right, after answering questions about his identity, to answer other questions or to remain silent. * From the beginning of custody, the person can ask for the assistance of a lawyer (Article 6). * The conversation with the lawyer has to remain confidential (Article 7). * The lawyer has the right to access some of the documents related to the procedure and to be present at any police interview of the suspect made by the police (Article 8). Witnesses under indictment (or who are cited as suspects) cannot be heard under oath, and thus do not risk prosecution for
perjury Perjury (also known as foreswearing) 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 inst ...
. Such witnesses must be assisted by an attorney, and must be informed of these rights when heard by the judiciary. Suspects brought before a Juge d'instruction must be informed of their right to remain silent, to make statements, or to answer questions. In all cases, an attorney can be designated by the head of the bar if necessary.


Germany

According to § 136 (StPO, i.e.
Criminal Procedure Code Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
) a suspect, arrested or not, has to be informed before any interrogation about their right to remain silent. Though the police and courts may not draw inference from the complete silence of the accused in any stage of criminal proceedings, inference may be drawn if the accused is selectively silent. Suspects cannot be heard under oath. Before any interrogation begins a suspect, arrested or not, must be informed: * Of the crime for which he is charged * About his right to remain silent * About his right to consult an attorney before the interview * About his right to name any evidence in his favour Foreign suspects have the following additional rights: * Translation assistance, and * Consular assistance A person against which exist plausible causes of suspicion can be interrogated as an ordinary witness in criminal proceedings against another person. However, in this case according to § 55 StPO, the witness can refuse to answer questions which could incriminate themselves (or one of their relatives). The suspicious witness also must be cautioned about the right to remain silent. Suspicious witnesses cannot be heard under oath. However, the German constitutional court has decided that the much more strict UK laws, in which complete silence of the accused can be used against him depending on additional evidence, are compatible with the German constitution. Thus, Germany may extradite persons to the UK. It also implies that changing the German laws towards those of the UK would not violate the German constitution.


Hong Kong

The right to silence is protected according to common law. The "Rules and Directions for the Questioning of Suspects and the Taking of Statements" (Rules and Directions), promulgated by the then
Secretary for Security The Secretary for Security is the member of the Government of Hong Kong in charge of the Security Bureau, which is responsible for public safety, security, and immigration matters. The post was created in 1973 and since the Principal Offic ...
in 1992, stipulate that the caution to be used to remind a suspect of his right to remain silent when he is questioned. The statement can be read in English and
Cantonese Cantonese ( zh, t=廣東話, s=广东话, first=t, cy=Gwóngdūng wá) is a language within the Chinese (Sinitic) branch of the Sino-Tibetan languages originating from the city of Guangzhou (historically known as Canton) and its surrounding ar ...
:
English:"You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence."
This is similar to the caution given in England and Wales prior to the passage of 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 r ...
. According to Jessica Wing-kay Chiu (趙穎琦), then a PhD candidate of the
University of Hong Kong The University of Hong Kong (HKU) (Chinese: 香港大學) is a public research university in Hong Kong. Founded in 1887 as the Hong Kong College of Medicine for Chinese, it is the oldest tertiary institution in Hong Kong. HKU was also the fir ...
, the law does not codify the exact procedure for law enforcement to serve a notice to the right to silence.


India

The Constitution of India guarantees every person the right against self incrimination under Article 20 (3): "No person accused of any offence shall be compelled to be a witness against himself". It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P. L. Dani, no one can forcibly extract statements from the accused, who has the right to keep silent, but only in the court of law. It is not clear if the accused can exercise his right to silence during interrogation by public servants. In 2010, the Supreme court found that forced narco-analysis,
brain mapping Brain mapping is a set of neuroscience techniques predicated on the mapping of (biological) quantities or properties onto spatial representations of the (human or non-human) brain resulting in maps. According to the definition established in ...
and lie detector tests violate of Article 20(3).


Israel

In
Israel Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
, according to Sections 28 (Hearing arguments of the detainee) and Section 31 (Explanation of rights to the detainee) of the Criminal Procedure Law (Enforcement Authority—Arrests) 1996, an officer interrogating/arresting a suspect must duly warn him first that he does not have to say any thing that may incriminate him, and that any thing he will say may be used against him. According to Israeli law, the exercise of the right to remain silent may be considered as supplemental evidence in most cases, and this fact also needs to be explained to the suspect. Also the officer needs to inform the suspect that he has the right to notify a family member or acquaintance and a lawyer of his arrest, his right for counsel, and the duration he can be held before he is released or brought before a judge. Israeli law has not adopted the " Fruits of the Poisoned Tree" doctrine, and flaws in the process of collecting it affect only the weight of tainted evidence. However, in Criminal Appeal 5121/98, ''Issaharov v. The Military Prosecutor'', a court of nine ruled that the defendant's confession, given without proper warning regarding the right of representation, was not considered as given with consent and free will, and was not accepted by the court.


Japan

According to the
Constitution of Japan The Constitution of Japan (Shinjitai: , Kyūjitai: , Hepburn: ) is the constitution of Japan and the supreme law in the state. Written primarily by American civilian officials working under the Allied occupation of Japan, the constitution ...
under Article 38(1), no person is allowed to testify against themselves.


Latvia

In Latvia, the
Criminal procedure law Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
() (sections 60.2, 150, 265, and more) sets out a right for anyone against whom criminal proceedings has been initiated or suspicions raised to remain silent. Upon arrest and before first interrogation of a person against whom any (official or unofficial) suspicion has been raised in a criminal case, such person must be warned of his or her right to remain silent, and that everything such person says may be used against that person in a criminal proceedings. Witnesses, victims and persons whose property rights has been affected by criminal proceedings has a right not to incriminate oneself and his or her relatives and not to give any information that is directly or indirectly self-incriminating or may incriminate such persons' relatives. Refusal to testify or answer all or any questions on the basis of right against self-incrimination cannot be used against such person in any way or be used as evidence of guilt. No judge, prosecutor, investigator or any other public body may draw adverse inferences about a person from exercising a right against self-incrimination. Outside criminal proceedings right against self-incrimination is honored as long-standing unwritten general principle of law in all quasi-criminal (such as administrative offense law) and public proceedings, which has been repeatedly upheld by legal precedent and case law.


Netherlands

In the Netherlands, each accused suspect has the right to remain silent to questions of the police and the prosecutor, during interrogation or investigation at the hearing. According to Dutch law, only the police officer will read the rights of the suspect in the police station. Security guards have the right to put somebody under arrest, but they have to hand over the suspect immediately to the police officer who will read the rights of the suspect later in the station. The rights are: to remain silent, the right to have an attorney, the right to have access to some files coming from the criminal dossier, and the right to make contact to an attorney. There is an exception: The accused must co-operate when there is "een aan de wil van de verdachte onafhankelijk goed" (material which has an existence independent of the will of a suspect) and a legal obligation for the suspect to hand over such material exists. For example, a suspect has to co-operate with giving a blood sample (with a suspicion of alcohol in traffic). Or the defendant must co-operate in handing over mucus, dandruff or hair for a DNA test. Such a DNA test can only be done at the request of the Prosecutor and ordered by the judge. There also have to be serious objections against the accused. And temporary detention has to be applicable.


New Zealand

In New Zealand, the right of persons arrested to refrain from making a statement and to be informed of that right is contained in the Bill of Rights Act 1990, as further reflected in a practice note on police questioning issued in 2006, by then Chief Justice Sian Elias.. The Evidence Act 2006 explicitly prohibits the inference of guilt in a criminal proceeding from a defendant exercising their right to silence. At common law the leading case is ''
Taylor v New Zealand Poultry Board ''Taylor v New Zealand Poultry Board'' was a decision of the Court of Appeal of New Zealand concerning the right to silence and implied statutory repeal of the common law privilege against self-incrimination. The decision, about " constitutional ...
'' where Justice Cooke held, "The starting point ... s unless an
Act of Parliament Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliament be ...
imposes or authorises the imposition of a duty to the contrary, every citizen has in general a right to refuse to answer questions from anyone, including an official."''Taylor v New Zealand Poultry Board''
984 Year 984 ( CMLXXXIV) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – German boy-king Otto III (4-years old) is seized by the deposed Henry II ( ...
1 NZLR 394 at 398.
The obligation to caution arises when: * a suspect is in custody; * when police have enough evidence to believe the person has committed an offence; * when detained, such as for the execution of a statutory or common law power of search or in the execution of drink driving investigations; * other situations as dictated by statute or case law. The caution to be given to adults (17 and over) is: The caution to be given to children and young persons under 17 is:


Norway

According to Straffeprosessloven (Criminal Procedures Code), a defendant cannot be obliged to testify(§90). Further; no promises, inaccurate information, threats or coercion can be used. The same applies to any means which reduces the defendants consciousness or his ability to self-determination. Any interrogation must not have as a goal to wear out the defendant(§92). However, if the defendant decides not to testify, the judge may advise him that it may in certain circumstances be held against him(§93). In general, anyone is required to appear before the courts and give testimony, except dictated otherwise by the law(§108)
There are some notable exceptions:
§119: The court may not hear evidence from a priest in the Norwegian Church, or indeed any priest or similar in any registered faith, lawyers, defence attorneys, arbitrators in marriage affairs, medical doctors, psychologists, nurses, midwives or apothecaries, except with the explicit permission of the person entitled to silence, concerning anything they have learnt during the performance of their function. The above does not apply if testimony is required to prevent someone from being wrongfully convicted(§119). Catholic priests have refused to testify about information obtained in confession even in these cases, and the Supreme Court has not sanctioned this.
§121: Even if the relationship is not regulated by §119, the courts may relieve a witness of the duty to testify concerning information obtained in counseling, social work, medical care, judicial assistance "or similar".
§122: A defendants spouse, relatives in directly ascending or descending order, siblings and their spouses are not required to give testimony. The same applies to separated or divorced spouses, or people living in a "marriage like" relationship, e.g. common-law marriages. The court may extend this right to fiancees, foster-parents/children/siblings.
§123: A witness may refuse to answer questions leading to self-incrimination either for the witness itself, or for anyone related to the witness as described by §122.
§124: A witness may refuse to answer questions relating to business secrets. The court may oblige the witness to testify after consideration.
§125: The editor of a printed magazine/newspaper may refuse to divulge the writer of any articles in his journal, or sources for its content.


Pakistan

Article 13 of the 1973 Constitution of Pakistan protects a person, when accused of an offence, from self-incrimination.


Philippines

The
1987 Constitution of the Philippines The Constitution of the Philippines ( Filipino: ''Saligang Batas ng Pilipinas'' or ''Konstitusyon ng Pilipinas'', Spanish: ''Constitución de la República de Filipinas'') is the constitution or the supreme law of the Republic of the Philippin ...
, in section 12(1) of Article 3 (Bill of Rights), states: This was expanded into a caution during arrest under
Republic Act This article contains a partial list of Philippine laws. Sources of Philippine laws ;Notes : *Customs may be considered as supplementary source of law, however, customs which are contrary to law, public order or public policy shall not be ...
7438. Previously, informing arrested persons of their rights occurred long after arrest, if it ever occurred at all. Section 17 of the Bill of Rights further states that " person shall be compelled to be a witness against himself", meaning a person has the right not to serve as a witness in cases in which they are the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...
so as to avoid
self-incrimination In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incriminati ...
. Punishments for law enforcement officers who fail to read suspects their rights, under RA7438, are severe: besides a fine of 6,000 Philippine pesos, officials may be jailed for between eight and ten years. In the 1999 case People vs Mahinay, G.R. No. 122485, the
Supreme Court of the Philippines The Supreme Court ( fil, Kataas-taasang Hukuman; colloquially referred to as the ''Korte Suprema'' lso used in formal writing is the highest court in the Philippines. The Supreme Court was established by the Second Philippine Commission on Ju ...
was asked to consider the case of Larry Mahinay y Amparado, a man
convicted In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of "not proven", which is cons ...
of the
rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or agai ...
and
murder Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the c ...
of a 12-year-old girl, the neighbor of his employer. Mahinay confessed but later retracted his confession, claiming that he made it due to
fear Fear is an intensely unpleasant emotion in response to perceiving or recognizing a danger or threat. Fear causes physiological changes that may produce behavioral reactions such as mounting an aggressive response or fleeing the threat. Fear i ...
surrounding his imprisonment and not actual guilt. Mahinay claimed that the police officers attacked him and threatened to kill him if he would not confess, and they did not inform him of his right to remain silent until after he had already confessed and all that remained was to sign the confession. There was no physical evidence to back up Mahinay's claims, and his attorney claimed that Mahinay was read his rights before he confessed. In its decision to affirm Mahinay's conviction, the court declared: But the court also declared the following, which has since become a landmark decision in the
rights of the accused Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
in the Philippines, and is sometimes referred to as the ''Mahinay doctrine'': No court or legislature has as yet determined the exact wording of the caution to be presented to arrested persons. As such, the
Philippine National Police The Philippine National Police ( fil, Pambansang Pulisya ng Pilipinas, acronymed as PNP) is the armed national police force in the Philippines. Its national headquarters is located at Camp Crame in Bagong Lipunan ng Crame, Quezon City. Currentl ...
has created their own version. According to the 2010 edition of the official PNP manual, "''every police officer, either on board a mobile car, motorcycle or on foot patrol must always carry with him a police notebook, a pen and the Miranda Warning card. The notebook, which is approximately pocket-sized, will be used to inscribe important events that transpire during his tour of duty.''" The version in use by the PNP reads: Various regional offices of the PNP use translations in other languages spoken in the Philippines depending on the
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
of the office. In 2012, the
International Committee of the Red Cross The International Committee of the Red Cross (ICRC; french: Comité international de la Croix-Rouge) is a humanitarian organization which is based in Geneva, Switzerland, and it is also a three-time Nobel Prize Laureate. State parties (signator ...
donated A donation is a gift for charity, humanitarian aid, or to benefit a cause. A donation may take various forms, including money, alms, services, or goods such as clothing, toys, food, or vehicles. A donation may satisfy medical needs such as bl ...
15,000 cards to the PNP, and commissioned the
translation Translation is the communication of the Meaning (linguistic), meaning of a #Source and target languages, source-language text by means of an Dynamic and formal equivalence, equivalent #Source and target languages, target-language text. The ...
of the warning into two more languages, Visaya and Cebuano, shown on the front of the card along with the Filipino version above. Due to the increasing numbers of
arrest An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be quest ...
s of
foreign national A foreign national is any person (including an organization) who is not a national of a specific country. ("The term 'person' means an individual or an organization.") For example, in the United States and in its territories, a foreign national ...
s during President Rodrigo Duterte's Oplan Double Barrel, the Human Rights Affairs Office (PNP-HRAO) of the Philippine National Police in Camp Crame, Quezon City has further translated the Miranda warning into four foreign languages:
Chinese Chinese can refer to: * Something related to China * Chinese people, people of Chinese nationality, citizenship, and/or ethnicity **''Zhonghua minzu'', the supra-ethnic concept of the Chinese nation ** List of ethnic groups in China, people of v ...
,
Japanese Japanese may refer to: * Something from or related to Japan, an island country in East Asia * Japanese language, spoken mainly in Japan * Japanese people, the ethnic group that identifies with Japan through ancestry or culture ** Japanese diaspor ...
,
Korean Korean may refer to: People and culture * Koreans, ethnic group originating in the Korean Peninsula * Korean cuisine * Korean culture * Korean language **Korean alphabet, known as Hangul or Chosŏn'gŭl **Korean dialects and the Jeju language * ...
, and Taiwanese. Distribution of the translated warnings to law enforcement officers will occur via a publicly available mobile app, according to the officer-in-charge of PNP-HRAO, Sr. Supt. Dennis Siervo. According to the website of the
Philippine National Police The Philippine National Police ( fil, Pambansang Pulisya ng Pilipinas, acronymed as PNP) is the armed national police force in the Philippines. Its national headquarters is located at Camp Crame in Bagong Lipunan ng Crame, Quezon City. Currentl ...
Regional Office 13, at Camp Rafael C Rodriguez in Butuan City, failure to recite either the Miranda or anti-torture warnings above can result in "dismissal of the case against the suspect and filing of administrative case for the arresting police fficer"


Republic of Ireland

In the Republic of Ireland, the Supreme Court held that the right was not only a common law right but also a constitutional right which might however be validly limited by legislation (O'Leary v AG 9951 IR 254). In this jurisdiction, a number of statutory measures have re-interpreted the right to silence, such as the Criminal Justice Act 1984, the Criminal Justice (Drug Trafficking) Act, 1998 and the Offences Against the State (Amendment) Act, 1998. The general effect of some of these measures is to provide for adverse inferences to be drawn against a suspect who declines to answer questions while being questioned in Garda custody. The Criminal Justice Act 2006 also affects the right to silence, in that it permits inferences to be drawn from silence where no solicitor is present.


Russian Federation

Clause 1 of the article 51 of the Russian Constitution grants everyone the right to not witness against either themselves or against their spouses and close relatives. As the decision whether or not an answer to a particular question would lead to (self)incrimination is left to the discretion of the person being questioned, this clause allows to remain silent at any time.


South Africa

The Constitution of South Africa requires that any arrested person be informed of their right to remain silent and the consequences of not remaining silent, their right to choose and consult with a legal practitioner, and their right to have a legal practitioner assigned to the detained person by the state and at state expense if substantial injustice would otherwise result. The
South African Police Service The South African Police Service (SAPS) is the national police force of the Republic of South Africa. Its 1,154 police stations in South Africa are divided according to the provincial borders, and a Provincial Commissioner is appointed in eac ...
rules prescribe that arrested people be given a Form 14A "Notice of Rights in Terms of the Constitution" which describes these and other rights of arrested people. According to Section 35 of the Constitution of 1996 ("Arrested, detained and accused persons") states:
# Everyone who is arrested for allegedly committing an offence has the right #* to remain silent; #* to be informed promptly #** of the right to remain silent; and #** of the consequences of not remaining silent; #* not to be compelled to make any confession or admission that could be used in evidence against that person;
and later in the section:
* Every accused person has a right to a fair trial, which includes the right ** . ... ** not to be compelled to give self-incriminating evidence;


Spain

In Spain, according to the ''Ley de Enjuiciamiento Criminal'' (Penal procedure code) article 520.2, the suspect must be informed of the charges leading to his/her detention, as well as the reasons for being deprived of his/her freedom. Additionally, the individual must be advised of the following rights: * Right to remain silent, to answer only questions of his/her choosing, or to express their desire to make a statement only in front of a judge. * Right not to give evidence against him/herself, as well as not to confess his/her guilt. * Right to legal representation by a private or state-funded attorney, which will assist him during hearings and procedures. * Right to inform a member of his/her family or a person of his/her choosing regarding the detention as well as their location, at any moment of the proceedings. Foreigners have the right to contact their consulate in Spain. * Right to request the services of an interpreter, at no cost, when the foreign national does not speak Spanish. * Right to undergo a medical examination by the forensic doctor.


Switzerland

Article 158 of the unified Swiss code of
criminal procedure Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail o ...
, which entered into force in 2011, establishes that the results of an interrogation may not be used unless the accused has been informed that: * he/she is the subject of a criminal investigation for some specific infractions, * he/she has the right to remain silent and not to cooperate with police, * he/she has the right to legal representation by a private or state-funded attorney, and * he/she has the right to request the services of an interpreter. The cantonal codes of procedure, which remain in force until 2011, generally contain similar provisions.


Thailand

Sections 83 and 84 of the Thai Code of Criminal Procedure, which have been amended by the Act Amending the Criminal Procedure Code (No. 22), BE 2547 (2004), require the police officers who conduct the arrests to inform the arrestees of their right against self-incrimination. Paragraph two of section 83 reads:
In cases an arrest is conducted by an officer, the officer must inform the arrestee of the charge, produce to him a warrant of arrest, if any, and enlighten him that ''he has the right to remain silent, that anything he says can and will be used as evidence in a trial, and that he also has the right to meet and confer with a counsel or person to become his counsel.'' If the arrestee wishes to inform his relative or intimate of his arrest and the fulfillment of his wish would not be difficult and not be disruptive to his arrest or restraint or detrimental to any person, the officer shall allow the arrestee to so fulfill to the extent reasonable according to the circumstances. In this respect, the arresting officer shall also draw up a record of arrest.
While paragraph one of section 84 prescribes:


Ukraine

Section 4 of Article 29 of
Constitution of Ukraine The Constitution of Ukraine ( uk, Конституція України, translit=Konstytutsiia Ukrainy) is the fundamental law of Ukraine. The constitution was adopted and ratified at the 5th session of the ''Verkhovna Rada'', the parliament ...
reads:
Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender.
Article 63 of Constitution of Ukraine reads: The Criminal Process Code of Ukraine has some regulations on how the rights of suspects and accused. Section 2 of Article 21Criminal Process Code of Ukraine
(unofficial translation)
reads:
Inquirer, investigator, prosecutor, judge, and court, before the first examination of the suspect, accused, and defendant, are required to advise them of the right to have a defense counsel and draw up an appropriate record thereon, as well as provide the suspect, accused, and defendant the possibility to defend themselves with legal remedies from the charge brought and ensure protection of their personal and property rights.
Article 43–1, Section 1 gives the following definition of "suspect": Consequently, the list of suspect's rights follows:
The suspect has the right to: know what he/she is suspected of; give testimonies or refuse testifying and answering questions; have a defense counsel and meet him/her before the first examination; produce evidence; submit motions and propose disqualifications; request that the court or prosecutor verify legality of the apprehension; submit complaints against actions and decisions of the officer who conducts operational-detective activities, inquirer, investigator, and prosecutor, and, with appropriate grounds present, have his/her security ensured. The fact that the suspect was advised of his/her rights is entered into the record of apprehension or decision to impose a measure of restraint.
Article 53 contains the following regulation:
Court, prosecutor, investigator and the inquirer are required to advise participants to the case of their rights and to ensure the possibility to enjoy such rights.
However, there are no clear regulations on how the rights should be announced. This is commonly made by reading them out when announcing the decision on instituting criminal proceedings or arrest and then requiring a suspect or arrestee to sign the list of these rights.


United Kingdom

The right to silence is different depending on which UK jurisdiction the suspect is questioned. In
England and Wales England and Wales () is one of the 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. The substantive law of the jurisdiction is Engl ...
it is possible for an adverse inference to be drawn from an accused person's silence during questioning. The same is true for Northern Ireland under the ''Criminal Evidence (Northern Ireland) Order 1988'', but no adverse inference may be drawn in Scotland under Scots law.


England and Wales

The right to silence has a long history in England and Wales, first having been codified in the
Judges' Rules The Judges' Rules are a set of guidelines about police and questioning and the acceptability of the resulting statements and confessions as evidence in court. Originally prepared for police in England, the Rules and their successor documents ha ...
in 1912. A defendant in a
criminal trial Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
has a choice whether or not to give
evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...
in the
proceedings In academia and librarianship, conference proceedings is a collection of academic papers published in the context of an academic conference or workshop. Conference proceedings typically contain the contributions made by researchers at the conferen ...
. Further, there is no general duty to assist the police with their inquiries. At common law, and particularly following the passing of 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 r ...
, adverse inferences may be drawn in certain circumstances where the accused: * fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention; * fails to give evidence at trial or answer any question; * fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or * fails to account on arrest for his presence at a place. There may be no conviction based wholly on silence. Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence. In respect of those questioned by the Serious Fraud Office, the right to silence has been reduced by virtue of Section 2 of the Criminal Justice Act 1987. The right has also been reduced for those accused of terrorist offences. The UK has some of the strictest key disclosure laws of the western world. Under Section 49 and Section 53 of the
Regulation of Investigatory Powers Act 2000 The Regulation of Investigatory Powers Act 2000 ( c.23) (RIP or RIPA) is an Act of the Parliament of the United Kingdom, regulating the powers of public bodies to carry out surveillance and investigation, and covering the interception of comm ...
(RIPA), it is an offence to fail to disclose when requested the key to encrypted data (with a penalty of two years in prison, or five years with regards to child sex abuse cases). Schedule 7 of the
Terrorism Act 2000 The Terrorism Act 2000 (c.11) is the first of a number of general Terrorism Acts passed by the Parliament of the United Kingdom. It superseded and repealed the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Em ...
has been used to convict people who have refused to disclose their password to customs.


=History

= Warnings regarding the right against self-incrimination may have originated in
England and Wales England and Wales () is one of the 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. The substantive law of the jurisdiction is Engl ...
. In 1912, the judges of the King's Bench issued the
Judges' Rules The Judges' Rules are a set of guidelines about police and questioning and the acceptability of the resulting statements and confessions as evidence in court. Originally prepared for police in England, the Rules and their successor documents ha ...
. These provided that, when a police member had admissible evidence to suspect a person of an offence and wished to question that suspect about an offence, the officer should first caution the person that he was entitled to remain silent. However, the warning about the possibility of anything the male suspect said being potentially used against him predates even that. The pre-trial operation of the privilege against self-incrimination was further buttressed by the decision in ''Ibrahim v R''
914 __NOTOC__ Year 914 ( CMXIV) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Spring – Empress Zoe Karbonopsina leads a palace coup at Constantino ...
AC 599 that an admission or confession made by the accused to the police would only be admissible in evidence if the prosecution could establish that it had been voluntary. An admission or confession is only voluntary if made in the exercise of a free choice about whether to speak or remain silent: In ''R v Leckey'' (1943) CAR 128 the Court of Criminal Appeal said: Therefore, a caution of the form of: was used. Major reform to the questioning and treatment of suspected offenders occurred in 1984 when the
Police and Criminal Evidence Act The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise ...
came into force. Under Code C the right to silence was amended by allowing adverse inferences to be drawn at a court hearing in cases where a suspect refuses to explain something, and then later produces an explanation (see
right to silence in England and Wales The right to silence in England and Wales is the protection given to a person during criminal proceedings from adverse consequences of remaining silent. It is sometimes referred to as the privilege against self-incrimination. It is used on any ...
). In other words, the jury is entitled to infer that the accused fabricated the explanation at a later date, as he refused to provide the explanation during police questioning. The jury is also free to make no such inference. The new caution is:
You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.
If questioning is forthcoming, "when questioned" may be replaced with "now". In cases in which the suspect has clearly nothing to gain by failing to remain silent:
Anything you do say may, and will, be given in evidence.
or:
You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.
or even (in circumstances where no adverse inference can be drawn from silence):
You do not have to say anything, but anything you do say may be given in evidence.


Northern Ireland

The Criminal Evidence (Northern Ireland) Order 1988 provided for adverse inferences being drawn for failure to mention something prior to being charged to an offence. The Criminal Procedure (Amendment) Rules 2009/2087 which came into effect on 5 October 2009, and replaced the Criminal Procedure Rules 2005, Pt 24 provides for post-charge questioning. This can be applied for failure to mention facts after a suspect has been charged with an offence. The scope of emergency legislation in Northern Ireland includes limitations on the right to silence, extended police detention powers and limitations on a suspect's right to legal counsel at time of arrest which can all impact upon a suspects
right to a fair trial A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...
. In ''
John Murray v United Kingdom ''John Murray v United Kingdom'' was a legal case heard by the European Court of Human Rights in 1996 regarding the right to silence in the United Kingdom, especially the legality of the reduction in the right so as to allow for adverse inferenc ...
'', the
ECHR ECHR may refer to: * European Convention on Human Rights * European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interp ...
declared that the fair trial guarantee encompassed the entire legal process from the moment of arrest through to conviction. The ECHR addressed this issue in a limited context in ''Murray v UK'' (1996); "To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defense may well be irretrievably prejudiced, is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6."


Scotland

The right to silence in
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland l ...
has been enshrined in statute by section 34 of the Criminal Justice (Scotland) Act 2016. Previously, the right to silence, as with much of Scots criminal law, was held under common law. The common law caution given by police to inform a person of their right to silence in Scotland is:
"You are not obliged to say anything but anything you do say will be noted down and may be used in evidence. Do you understand?"
The only exception to this rule is that a person must state, upon being required to do so, their name, address, date of birth, place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person's identity), and nationality. The requirement to give personal details also exists in Scots law under section 13 of the Criminal Procedure (Scotland) Act 1995, which provides that a person suspected to have committed, or suspected of having been witness to, an offence must provide the aforementioned details to a constable upon being required to do so. Failure to provide said details under section 13 is a criminal offence. No
adverse inference Adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence. It is part of evidence codes based on common law in various countries. According to Lawvibe, "the 'adverse inference' can ...
can be drawn by an accused person's silence when they are interviewed under caution.


United States

The
Fifth Amendment to the United States Constitution The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amendme ...
provides that no person shall be compelled in any criminal case to be a witness against himself or herself. At trial, the prosecution can neither call the defendant as a witness, nor comment on the defendant's failure to testify. Whether to testify or not is exclusively the privilege of the defendant, although defendants were originally not allowed to testify on their own behalf at all. An 1864 appropriations act allowed defendants to do so while removing race restrictions, and the 1987
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
case '' Rock v. Arkansas'' established a constitutional "right to take the witness stand." Outside the context of lawful detention or arrest, a person has no duty to answer any questions of the police. If judicial compulsion is sought by the State, the person can still invoke his or her Fifth Amendment right against compulsory self-incrimination, and refuse to testify if answers to questions posed are potentially self-incriminating. Only if granted immunity by the state, in a formal proceeding, from having any testimony or evidence derived from the testimony used against him or her, can a person be compelled to answer over an assertion of this right. If police detain (or arrest) a person, they must advise him or her that he or she has a right to remain silent, and the right to an attorney, among other rights. (This is known as the ''Miranda'' warning.) If the detained person invokes these rights, all interrogation must cease, and ordinarily nothing said by the defendant in violation of this rule may be admitted against him or her at trial. The form of the Miranda warning varies based on jurisdiction, but it usually follows this pattern:
You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without an attorney present, you have the right to stop answering at any time. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
On 17 June 2013, the U.S. Supreme Court ruled in '' Salinas v. Texas'' that, prior to being arrested, an individual must specifically invoke the Fifth Amendment right to "remain silent", otherwise selective silence can be used against him or her in court.


Uniform Code of Military Justice

Members of the
United States Armed Forces The United States Armed Forces are the military forces of the United States. The armed forces consists of six service branches: the Army, Marine Corps, Navy, Air Force, Space Force, and Coast Guard. The president of the United States is the ...
are covered by the
Uniform Code of Military Justice The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given by the United States Constitution ...
(UCMJ). Under the UCMJ, sworn military personnel, whether of enlisted, warrant or commissioned rank, have a right to remain silent that was established 16 years before the ''Miranda v. Arizona'' ruling. There are significant protections against coercive self incrimination in Article 31, UCMJ, but it does differ somewhat from the ''Miranda'' warning, and in essence provides greater protections. This is one difference between civilian and military justice in the United States, and many other nations have similar corollary rules regarding military justice vs. civilian justice.Military Judicial Rules of Procedure, Uniform Code of Military Justice – 1951 as amended


See also

* Taking the Fifth *
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 ...
(Article 14) *
Miranda warning 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 f ...
*
Presumption of innocence The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present ...
*
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 counsel In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal exp ...


References


Further reading

*


External links


Don't Talk to the Police
— lecture by law professor
James Duane James Duane (February 6, 1733 – February 1, 1797) was an American Founding Father, attorney, jurist, and American Revolutionary leader from New York. He served as a delegate to the First Continental Congress, Second Continental Congress and t ...
of the
Regent University School of Law Regent University School of Law is the law school of Regent University. Located in Virginia Beach, Virginia, the school was founded in 1986 and was fully accredited by the American Bar Association in 1996. The school was previously under provision ...
and Officer George Bruch from the Virginia Beach police department. {{Authority control Evidence law Criminal procedure Legal communication Criminal law Silence Australian criminal law Law of Bangladesh Canadian criminal law Criminal law of the United Kingdom French criminal law German criminal law Law of Hong Kong Indian criminal law Prisoners and detainees of the Netherlands Pakistani criminal law South African criminal law Law enforcement in the Czech Republic Law of the United States