Right to Silence Issue - Dissertation Example

?Literature Review It has been argued that the right to silence merely protects the guilty, since those with nothing to fear will speak out what is in their minds candidly and spontaneously. It is only the guilty who need to hide the truth of what had really transpired and would seek refuge in the sanctity of silence, so that they do not blurt out their own guilt and complicity in the crime committed, or planned to be commissioned. This literature review would need to take stock of the present status of the right to remain silent and would also seek to critically examine the recent changes in the law with regard to the privilege to remain silent and would also endeavour to assess the value of the rule. It would also be necessary in this review of literature to consider the situation that would arise should the rule be abolished in its entirety. Besides, it would also be appropriate to assess the effect on legal professional privileges as a result of the change in rules and its impact on the conduct of criminal cases. Present status of the right to remain silent: Under the laws of the United States, a person cannot testify for himself. Thus, under the Fifth Amendment of the US Constitution, a person cannot be compelled in any criminal case to be a witness against himself.” (U.S. Constitution: Fifth Amendment, 2011). Thus it is well within the ambit of a person’s Fifth Amendment rights to refuse to answer any questions put forth by a policemen or any law enforcement authority to assess a person’s complicity or otherwise in a crime. A person could refuse to testify not only in order to save himself from the possible use of his stated words against himself, or even to disapprove his involvement, or state a claim of his innocence in a given case scenario. However, the laws are now changing and there are proposals to bring about reforms in the aspect of the right to remain silent during questioning. In the landmark case of Miranda v Arizona 384 U.S. 436 (1966), the Court reiterated the suspect’s rights under Fifth and Sixth Amendment of US Constitution. A suspect does have a right to remain silent and also has to be informed that whatever statements he makes could be used as evidence against him during trial proceedings. Besides, a suspect has the right to a lawyer, who could act as his counsel and be present during interrogation of the suspect.”You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” (What are your Miranda Rights?, 2010). However, it is seen that in recent times, there are proposals to change or reform the concept of the right to silence enjoyed by suspects in cases. In the year 2010 case of Berghuis v. Thompkins, the defendant, Thompkins accused of first degree murder failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so "unambiguously." Moreover, the Supreme Court reasoned that Mr. Thompkins waived his Miranda right to remain silent when he "knowingly and voluntarily" made a statement to the police. The Supreme Court further held that, even if Mr. Thompkins' counsel was ineffective, he cannot show he was prejudiced by counsel's deficient performance – a prerequisite to establishing that his Sixth Amendment right was violated.” (Thompkins, 2009). This was indeed a departure from the Miranda judgment regarding enforcement of Fifth Amendment laws, and is a decision by the United States Supreme Court in which the Court considered the position of a suspect who understands his or her right to remain silent under Miranda v. Arizona and is aware he or she has the right to remain silent, but does not explicitly invoke or waive the right. The changes in the law are evident in the fact that Miranda ruling could not be enforced in the Sebastien Boucher case. In a recent case of In re Grand Jury Subpoena to Sebastien Boucher,United States District Court for the District of Vermont, “ The Government filed a criminal complaint against Boucher on December 18, 2006, alleging that he knowingly transported child pornography in interstate or foreign commerce in violation of 18 U.S .C. § 2252A(a)(1).” (William, 2009). The Government sought unencrypted disclosure of materials sought in the encrypted hard disk of the laptop which was challenged by the counsel for defendant, claiming Fifth Amendment protection. However, finally, “Because Boucher has no act of production privilege to refuse to provide the grand jury with an unencrypted version of the Z drive of his computer, his motion to quash the subpoena (as modified by the Government) is denied. Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent.” (William, 2009). Under Section 34 of the Criminal Justice and Public order Act 1994, the Court would be at liberty to draw their own inferences in the event the defendant refrains, under oath to answer questions put to him/her and under certain circumstances, could be taken to be done without “good cause” (Criminal Justice and Public Order Act 1994, 1994). The US Supreme Court firmly established this principle against self incrimination in a 2010 decision of Berghuis v. Thompkins. In that case, a murder suspect negated to sign an admission of his Miranda rights, and then later made statements that were used against him in his conviction for the crime. “The Court ruled that the burden was on the suspect to invoke his Miranda rights, and his failure to sign the acknowledgment essentially amounted to a waiver of those rights.” (Arizona, n.d.). Another interesting aspect is that the question of Miranda invocation would arise only in the event the suspect is arrested and is placed before interrogation. In the event not relevant to these two pre-conditions, there is no need to inform the suspect about Miranda rights and its enforcement. Depositions taken outside of this are not protected under Miranda and could be used against the defendant. In another 2010 case, the US Supreme Court refined the rules for police interrogations. In that case, the Court ruled that police officers could initiate a second interrogation of a suspect who had previously invoked his Miranda right to remain silent once two weeks had elapsed from the date of the original interrogation. The police did not have to give the suspect another Miranda warning, according to the Supreme Court. The Court decided that the Miranda warning from the previous interrogation remained in effect, thus the statements the suspect gave during the second interrogation constituted a waiver of his right to silence. “At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant's lawyer cannot force the defendant to take the witness stand at trial, if he or she does not want to do so. Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take that refusal into consideration when deciding whether the defendant is guilty of the crime(s) charged. It is important to note that, once a defendant does take the stand and testify at trial, he or she cannot ordinarily choose to answer some questions but not others. Rather, the defendant's Fifth Amendment privilege is deemed waived through the act of testifying.” (Jachimowicz, 2011).In the bank robbery case of United States v Dickerson 97-4750 (1999) the question arouse as to whether confessions made voluntarily could be used against the speaker defendant at a later time and be treated as admissible evidence. In this case “The district court, relying upon this Court's decision in United States v. Elie, 111 F.3d 1135 (4th Cir.1997), noted that evidence found as a result of a statement made in violation of Miranda may only be suppressed if the statement was involuntary within the meaning of the Due Process Clause of the Fifth because Dickerson's statement was voluntary under the Fifth?Amendment. Amendment, the district court concluded that the evidence found as a result thereof was admissible at trial.” (DICKERSON, 1999). There is evidence and court decisions to prove that Miranda judgement has limited application in today’s criminal justice delivery system and 18 U.S.C.A. §3501 (West 1985), is seen as more preponderant than Miranda in many recent decided cases. This is because many cases have been argued and decided without summoning Miranda rights, especially when the defendants, without any kind of coercion or threat, confess on their own, and thus the question of enforcement of Miranda does not arise. Moreover, Miranda case was heard and verdicted at a time when there no not much complexities in the legal systems nor was it necessary to enforce a plethora of legal jurisprudence and legal arguments to address cases and offer judicious solutions to these cases. Thus, “as a consequence, § 3501, rather than Miranda, governs the admissibility of confessions in federal court.” (DICKERSON, 1999). CHAPTER 4 Case Studies and major developments in the right to silence privilege It is seen that there are conspicuous shifts away from right of silence to a more nuanced and objective approach while dealing with issues connected with it. Under normal circumstances, after arrest but before interrogations, the police have to inform the suspect about his/her rights to remain silent, claim the benefit of legal counsel during interrogation. All these rights are put down in paper and the suspect acknowledges that he is made aware of his Miranda rights. It is then the option of the suspect whether to answer questions or not, or provided material evidence. Since a person cannot be a witness to oneself, and cannot incriminate oneself, these rights have evolved. “Confessions, admissions, and other statements taken from a defendant in violation of this right are inadmissible against him during a criminal prosecution. Convictions based on statements taken in violation of the right against self-incrimination normally are overturned on appeal, unless there is enough admissible evidence to support the verdict.” (Self-Incrimination, 2011). However, the right of silence has been subject to several abuses and misinterpretations, such that the very concept of remaining silent under interrogation as a privilege has become of a questionable kind. Guilty felons and other criminals accused of major offences and felonies could take shelter in the right to silence and could invoke Fifth Amendment laws to wriggle out of indicting circumstances. Even after providing a confessional statement, they could go back on their words and state that the confessions were provided under duress and was extracted by the police under pressure and coercision, thus making these kinds of statements inadmissible under law. Besides, there is indeed logic which would confirm that in the event a confessional statement is provided under volition and voluntarily, it would not come within the purview of Miranda rights. Thus, in the event of voluntary confessions, like in the case of United States v Dickerson 97-4750 (1999), it would well be within police rights to initiate proceedings under law based on a voluntary confession. “High court precedent says a federal suspect has to be taken before a federal magistrate without "unreasonable delay" but federal law says a voluntary confession can be admitted into evidence if given within six hours of an arrest or given within an even longer period if there is some transportation or administrative problem.” (Court narrows 'voluntary' confessions, 2009). “Source of a confession’s unreliability may lie in the methods used to extract it: if obtained by coercion, which can cover forms of pressure as varied as torture at one extreme to far more subtle means of inducement presented to the suspect at the other, there is a plain risk that the confession may prove untrue; and this is quite apart from any further consideration that, as a matter of policy, the law cannot simply be seen to have any truck with confessions obtained by especially devious or overreaching methods” (Confessions, n.d.). In the 1996 US Supreme Court decision in Brecht v. Abrahamson,507 U.S. 619 (1993), relating to a professed accident shooting, “The jury returned a guilty verdict, and Brecht was sentenced to life in prison, but the State Court of Appeals set the conviction aside on the grounds that the State's references to his post-Miranda silence violated due process under Doyle v. Ohio, 426 U.S. 610 and this error was sufficiently "prejudicial" to require reversal. The State Supreme Court reinstated the conviction, holding that the error was "`harmless beyond a reasonable doubt'" under the standard set forth in Chapman v. California, 386 U.S. 18, 24 . The Federal District Court disagreed and set aside the conviction on habeas review.” (ABRAHAMSON, 1993). It is thus observed that often, extraneous matters of law and the conduct of proceedings play a very important part in the final decision, and could greatly influence it, and therefore, this could also vitiate the verdict or cause the original verdict to be set aside. However, in many of the recently decided cases, there has been a marked departure from the substance and induction of Miranda, and its enforcement in the case of voluntary confessions cannot be denied. Moreover, even in cases where the suspect refuses to acknowledge the fact that Miranda laws have been informed to him, he could later on bring on the plea of invoking Miranda. Again, in the event he makes confessional statements or prejudices or endangers his own position by speaking out, he is precluded from enforcing Miranda rights later on. Thus, there should be honoring of privileges under Miranda and needs to be kept up by the suspect fully, without any changes later on.”Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel.” (Arizona, 1966). One interesting factor, however, is that the question of Miranda arises only when these two conditions are fulfilled: Firstly, the subject has been arrested and secondly, s/he has been put up for interrogation. Under circumstances other than this, Miranda cannot be invoked, and in such cases, any kind of evidences gleaned by the police cannot come within the ambit of Miranda rights. Thus, if during a car search, some incriminating pornographic materials were seen and seized by the police, and the subject blurts out certain facts about his possession of these documents, he cannot withdraw his statement later stating that he sought protection under Fifth Amendment laws. Again, should he decide not to invoke Miranda although it was made known to him at the beginning, he cannot claim recourse to it later. These are the major aspects that need to be considered in the case of self –incrimination, or right to remain silent. Thanks to its ambiguity and misinterpretation in different situations, Miranda has ceased to enjoy the popularity and recognition it once enjoyed, and has now been used only in extreme circumstances. Major developments in the area of self incrimination are that once the protection of Miranda has been sought, it cannot be relegated latter and the suspect needs to stick to the rules applied by Miranda. In the event Miranda is not invoked either due to error on the part of the law enforcement authorities or due to technical errors, it is quite possible that the Courts may take shelter in such errors to deny or enforce a decision, depending upon the case settings or other extraneous matters. However, a lot would depend upon circumstances and settings surrounding cases and its impact upon the various parties and it would well be indiscreet to have a set of readymade laws to suit intricate cases of any kind. Besides, there would also be external and internal matters that shape and influence the course of legal decision making. That being said, it is necessary to conclude this section of this study by stating that with evolving times and more intricate case studies, the preponderance of earlier laws does have limited effect and scope, and it now becomes necessary to seek more modernistic and appropriate ways of dealing with modern businesses. “As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Fifth Amendment Court Cases- Self-Incrimination Clause, 2008).Court Cases - Self-Incrimination. CHAPTER 5 Analysis and Findings: From the above deliberations it is clear that the days of invoking Fifth Amendments at the drop of a feather are numbered and few and far between. Besides, Section 3501 is of a more appropriate and preponderant application and is readily in sync with the question of the right to remain silent, demand and claim the presence of a lawyer during interrogation, and being told about the suspect’s rights under legal process. Besides this, there are also the need to balance the preponderance of the criminal justice delivery system with the rights, privileges and obligations of the suspect and others. One cannot just ignore the law and the need to institute criminal proceedings against strong suspects. At the same time, it is also necessary to offer the best protection that suspects ( not criminals) need to gain. For one thing, it is necessary that in some cases, legal precedents may be followed, at the discretion of the Court and the need for arguing on sound and plausible lines – Courts could refer to legal precedents but are not usually bound to accept or be influenced by legal precedents. Commonly defined, “Legal principle, created by a court decision, which provides an example or authority for judges deciding similar issues later. Generally, decisions of higher courts (within a particular system of courts) are mandatory precedent on lower courts within that system--that is, the principle announced by a higher court must be followed in later cases. For example, the California Supreme Court decision that unmarried people who live together may enter into cohabitation agreements and “Nonmarital partners may lawfully contract concerning the ownership of property acquired during the relationship” (Lee Marvin, 1976). This is binding on all appellate courts and trial courts in California (which are lower courts in relation to the California Supreme Court). Similarly, decisions of the U.S. Supreme Court (the highest court in the country) are generally binding on all other courts in the U.S.” (PRECEDENT, 1995). The value of speech, or in other words, silence, could best be seen in terms of the fact that although the law offers protection to all suspects in cases, by allowing them the privilege of keeping silent, or not indulging in self incrimination, this privilege would not be available in the event a suspect voluntarily makes a confessional statement or does not acknowledge that he is made aware of his Right to Silence right.”In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.” (Crimes and Criminal Procedure - 18 USC Section 3501, 2006). For a law enforcement officer, it is indeed walking the tightropes, in that s/he cannot force a confession from the suspect, although he may be absolutely sanguine about his/her complicity in the crime and yet the rigors of his duties and responsibility does demand that the due process of law needs to be fulfilled and criminals need to be brought to books, whatever the excuses and defenses against it, technical or otherwise. But the fact that weighs heavily is that in an adversarial legal process, the parties to a controversy develop and present their arguments, gather and submit evidence, call and question witnesses, and, within the confines of certain rules, control the process... One criticism of the adversary system is that it is slow and cumbersome. The judge, acting as a neutral fact finder, can do little to accelerate a trial, and procedural and evidentiary rules further slow the process. Likewise, the wide availability of appellate review means that a final determination can take years. However, at least one study has shown that in courts where adversarial trials were discouraged and settlements actively encouraged, litigants still encountered substantial delays in resolution. And supporters of the adversary system maintain that a methodical, albeit cumbersome, system is necessary for protection of individual rights. (The Adversary System: Who Wins? Who Loses?, 2011). While the adversarial system does involve a greater deal of time and efforts on the part of the parties, the Courts and the judicial system, it does provide a sound and rationale decision making and verdict based on the merits of the case. This is in line with populist thinking that even if many guilty were allowed to roam scot free, not even a single innocent person should be charged with a crime which s/he has not committed. “When there is strong evidence of a crime being committed, the person may be happy to admit to a less serious crime, but the innocent person might not be so pleased. He would still claim guilt for a crime not committed and that could have serious ramifications. The innocent person may choose instead to ask for a jury trial, but there can be pressure from lawyers to avoid this, though ultimately it is the accused's right to choose a plea.” (What Are the Pros and Cons of Plea Bargaining?, 2003). As a matter of fact, in the legal cases, it is often the guilty accused who gets the benefit of doubt due to lack of evidence or preponderance of witnesses in his favour. It could even transpire that the innocent may have to pass a harrowing time to prove his/her innocence while a guilty criminal would use all kinds of tactics, ethical or otherwise to avoid punishment and retribution for his crimes Perhaps one of the greatest paradox of the justice delivery system in this country is that the innocent find it extremely difficult to prove their blamelessness while the guilty through various devices find it relatively simple to be absolved of crimes. CHAPTER 6 Conclusions: Finally, it is time to come to the end of this interesting and extremely absorbing study on self incrimination or the privilege of remaining silent. While the matter of who benefits more by remaining silent- the guilty, or the innocent is indeed a matter of some conjecture and speculation, there are some very good and justifiable reasons why this system needs to give way to something more scientific and rational- the basic difference is that the innocent needs to prove that they are not guilty and need to present and showcase their arguments accordingly, whereas the guilty demands the judicial system to prove that they are indeed guilty, without all reasonable limits of doubt. There is need to take an objective and practical view of things, rather than to dwell on the philosophical and theoretical aspects of innocence and guilt. Besides, there are also many other aspects involved in terms of a more rational and objective view of crime and criminal justice systems, moving away from the adversarial system, which has several drawbacks and disadvantages to a more result oriented and fast tracked approach, concerned more with the delivery of justice rather than more concerned with a pretentious and grandiose display of argumentative histrionics and legal skulduggery. While it is indeed dismal and appalling that many great crimes remain unresolved due to technical reasons, it is also true that greater dozes of reforms could help reform and upgrade the legal system in this country. Reference List ABRAHAMSON, B. 1993. U.S. Supreme Court. [Online] FindLaw. Available at: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=507&invol=619 [Accessed 27 March 2011]. Arizona, M. 2011. Miranda Warnings and Police Questioning. [Online] FindLaw. 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