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September 21, 2009

An international perspective on the right to remain silent

This article from New Zealand, which is headlined "Crime victims slam right to silence," provides an interesting international perspective on what is often viewed as a cherished American constitutional right.  Here are some highlights:

Crime victims want an end to defendants "hiding" behind the right to silence in court but civil rights experts and defence lawyers argue this would be a serious erosion of human rights.

Sensible Sentencing Trust spokesman Garth McVicar outlined a proposal to ditch defendants' right to silence when he headed up a high-profile conference at Taupo at the weekend. He said at present the law sheltered people accused of serious crimes including murder. "It doesn't mean defendants will be forced to talk it just means if they don't, juries can take it into account."

There were two murder trials involving Waikato people last week where defendants did not take the stand: Joshua Woodcock who was found guilty of the manslaughter of his baby daughter, and the three men found guilty of murdering Waharoa man Ollie Gage in a drive-by shooting.

The Sensible Sentencing Trust's lawyer, former ACT MP Stephen Franks, said New Zealand should follow Britain's lead in allowing police to advise defendants that their silence could be used against them, and in permitting juries to "draw a sensible inference". "There are occasionally valid reasons for invoking the right to silence but it has become part of the ritual game-playing by justice system insiders."

Police-rape complainant Louise Nicholas, who lost her own case but sparked a damning inquiry into police conduct, said the right to silence should be abolished. "Nine times out of 10, the defendant exercises his right to silence, but the victim has to take the stand and have her entire life raked over and her character put under the spotlight," she said.

But the call to remove defendants' right to silence was criticised by two senior Waikato defence lawyers.  Paul Mabey QC said a law change forcing defendants to take the stand would erode a fundamental legal right that the prosecution had to prove the guilt of the defendant. "The right to silence is fundamental and preserved in the Bill of Rights. It's consistent with the presumption of innocence, and no person must prove their innocence," Mr Mabey said.  Defendants "should not be forced to give evidence".... Philip Morgan QC described any push to end the right to silence as "just nonsense, really"....

Ms Collins told the conference: "Law-abiding New Zealanders are sick and tired of seeing their rights eroded and, in many cases, ignored in favour of the rights of criminals. This Government is not standing for that."

Shrewd readers likely know that the US Supreme Court had an interesting discussion of the sentencing aspects of "right to silence" issues in its 1999 ruling in Mitchell v. United States (available here).

September 21, 2009 at 02:44 PM | Permalink


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New Zealand Reexamines Its Right to Silence: At Sentencing Law and Policy, Doug Berman posts a link to Waikato Times article by Jeff Neems. The article, "Crime Victims Slam Right to Silence," explains the efforts of Sensible Sentencing Trust spokesman... [Read More]

Tracked on Sep 21, 2009 5:50:19 PM


"Crime victims want an end to defendants "hiding" behind the right to silence in court but civil rights experts and defence lawyers argue this would be a serious erosion of human rights."

For more shocking news, tune in at 11...

Posted by: anonymous | Sep 21, 2009 3:28:17 PM

After conviction, a harmless torture, like water boarding, should be authorized to make the prisoner spill everything he knows about all crimes he knows of. His statements should be inadmissible in any proceeding against him to avoid the problem of self-incrimination. But his statements, if verified in the field, should be usable against confederates. Such statements under torture should be presumed to be in good faith. Waterboarding should continue long after any new information has stopped coming, to insure that the prisoner has forgotten nothing.

As to the silly turncoats from the military claiming torture is unnecessary and less than useful, they are simply wrong. Millions of Americans owe their lives and economic well being to these firm interrogations. These military turncoats turn up only on left wing propaganda outlets, such as NPR. Nothing on that network has the slightest credibility.

Posted by: Supremacy Claus | Sep 24, 2009 12:55:49 AM

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