The privilege against self-incrimination: Reconsidering Redmaynes rethinking

Abstract

In ‘Rethinking the Privilege Against Self-Incrimination’, Mike Redmayne offered an ingenious proposal that both motivated the privilege and explained the difference between statements and other forms of assistance. He connected the privilege with the idea that individual citizens should have space to disassociate themselves from a prosecution, particularly where it would be very costly for them and not particularly helpful to the prosecution, to assist. The many situations where the law did require the citizen to assist, on the other hand, were those where it was worth imposing the costs of assistance on individuals. In what follows, I offer a critical reading of this account of self-incrimination. I will suggest that Redmayne himself recognized the danger of relying too heavily on a certain kind of cost-benefit analysis. I suggest that the account could be strengthened by attending more closely to the relationship between the privilege against self-incrimination and the rights of the participants in the legal process, notably the presumption of innocence.

Silence Matters: A survey of the right to silence in the summary jurisdiction of New South Wales

“…In this way, silence rights might be seen as a processual vehicle through which other variables are expressed. But, as explained above by reference to the work of Stewart (2016) and Bucke et al (2000), there is empirical value in measuring and 43 When subjected to a Pearson's Chi-Squared Test of the null hypothesis that there is no association between assertion type and conviction, the results were as follows: χ2 = 358.27, df = 1, p < 0.001. A p-value of less than 0.001 resulted from a comparison with a chi-squared distribution with one degree of freedom.…”

“…In this way, silence rights might be seen as a processual vehicle through which other variables are expressed. But, as explained above by reference to the work of Stewart (2016) and Bucke et al (2000), there is empirical value in measuring and understanding how silence is exercised and operates, particularly where understandings of its operation are contested and where no published empirical studies have measured its operation in this jurisdiction.…”

“…Redmayne (2007), for example, has argued that the related privilege against self-incrimination (exercised in court) was technically distinct from the right to silence (exercised during the investigation stage), as well as the presumption of innocence and burden of proof (requiring the prosecution to prove its charge); that it existed chiefly to allow citizens to dissociate themselves from a prosecution; that its use contains too many variables to accurately assess via empirical analysis; and that it should therefore be defined narrowly. Redmayne’s ‘narrow’ definition has since been challenged by evidence law commentator Hamish Stewart (2016), who suggests that there is in fact ‘an underlying normative connection between the presumption of innocence, the privilege against self-incrimination, and the requirement that the state make its case without the active testimonial participation of the accused’ and that ‘the privilege against self-incrimination carries on through the entire criminal process as a concomitant of the presumption of innocence’ (2016: 98). This broad view appears to be supported by a range of commentators as well as the reading given to ICCPR, Article 14 by the European Court of Justice.…”

“…Such information allows stakeholders and policy makers greater insight into the significance of silence rights, especially their effects. As importantly, it provides researchers and commentators with greater evidence for enhanced explanation and understanding of pre-trial criminal procedure, not only between criminal jurisdictions (such as between jurisdictions that maintain adverse inference provisions and those that do not) but also between criminal and regulatory jurisdictions that frequently dispense with the right to silence (Comino, 2014; Stewart, 2016: 100). As a recent Australian Law Reform Commission Report on the subject found, ‘evidence regarding the effect’ of the right to silence ‘is not easy to come by’ (ALRC, 2016: 320).…”

A Review of Defence Pretrial Disclosures Within the Case Management Theory of Criminal Proceedings in Ghana

“…More particularly, a theoretical void arises from a lack of consideration of the issue of harmonization of due process rights insulating the accused from matters of proof and the new policy of defense disclosure and participation at trial. There is undeniably an underlying normative connection between the presumption of innocence, the privilege against self-incrimination, the right to silence and the requirement that the state makes its case without the active testimonial participation of the accused (Stewart, 2016). Diluting the right to silence and requiring the accused's participation through managerialism in an adversarial trial system moves the trial policy from a 'due process and proof' perspective that underlines the adversarial trial to a 'truth finding' policy that underlies the inquisitorial trial model.…”