Many schools and an entire school system were shut down in 1958
and 1959 in attempts to block integration. This lasted until the Virginia Supreme Court and a special three-judge panel of federal district judges from the Eastern District of Virginia, sitting at Norfolk, declared those policies unconstitutional.
Although most of the laws created to implement massive resistance
were overturned by state and federal courts within a year, some aspects
of the campaign against integrated public schools continued in Virginia for many more years.
Byrd Organization and opposition to racial integration
After Reconstruction ended in 1877 and the local Readjuster Party fell in the 1880s, Virginia's conservative Democrats actively worked to maintain legal and cultural racial segregation in Virginia through the Jim Crow laws. To complete white supremacy, after the U.S. Supreme Court's decision in Plessy v. Ferguson
(1896), Virginia adopted a new constitution in 1902 effectively
disenfranchising African Americans through restrictions on voter
registration and also requiring racially segregated schools, among other
features.
In the early 20th century, Harry Flood Byrd (1887–1966), a Democrat, former Governor of Virginia, and the state's senior U.S. Senator after World War II, led what became known as the Byrd Organization. Continuing a legacy of segregationist Democrats, from the mid-1920s until the late 1960s the Byrd Organization was a political machine
that effectively controlled Virginia politics through a network of
courthouse cliques of local constitutional officers in most of the
state's counties. The Byrd Organization's greatest strength was in the
rural areas of the state. It never gained a significant foothold in the independent cities,
nor with the emerging suburban middle-class of Virginians after World
War II. One of the Byrd Organization's most vocal, though moderate,
long-term opponents proved to be Benjamin Muse, who served as a Democratic state senator from Petersburg, Virginia, then unsuccessfully ran for Governor as a Republican in 1941, and became a publisher and Washington Post columnist.
A little more than a month after the Supreme Court's decision in Brown, on June 26, 1954, Senator Byrd vowed to stop integration attempts in Virginia's schools. By the end of that summer, Governor Thomas B. Stanley,
a member of the Byrd Organization, had appointed a Commission on Public
Education, consisting of 32 white Democrats and chaired by Virginia
Senator Garland "Peck" Gray of rural Sussex County. This became known as the Gray Commission.
Before the commission issued its final report on November 11, 1955, the
Supreme Court had responded to segregationists' delaying tactics by
issuing the Brown II decision and directing federal district judges to implement desegregation "with all deliberate speed."
The Gray Plan recommended that the General Assembly pass legislation
and allow for amendment of the state constitution so as to repeal
Virginia's compulsory school attendance law, to allow the Governor to
close schools rather than allow their integration, to establish pupil
assignment structures, and finally to provide vouchers to parents who
chose to enroll their children in segregated private schools. Virginia
voters approved the Gray Plan Amendment on January 9, 1956.
1956: Circumventing Brown via the Stanley Plan
On
February 24, 1956, Byrd declared a campaign which became known as
"massive resistance" to avoid implementing public school integration in
Virginia. Leading the state's conservative Democrats, he proclaimed "If
we can organize the Southern States for massive resistance to this order
I think that in time the rest of the country will realize that racial
integration is not going to be accepted in the South." Within a month, Senator Byrd and 100 other conservative Southern politicians signed what became known as the "Southern Manifesto", condemning the Supreme Court's decisions concerning racial integration in public places as violating states' rights.
Before the next school year began, the NAACP filed lawsuits to
end school segregation in Norfolk, Arlington, Charlottesville and
Newport News. To implement massive resistance, in 1956, the Byrd
Organization-controlled Virginia General Assembly passed a series of laws known as the Stanley Plan, after Governor Thomas Bahnson Stanley.
One of these laws, passed on September 21, 1956, forbade any integrated
schools from receiving state funds, and authorized the governor to
order closed any such school. Another of these laws established a
three-member Pupil Placement Board that would determine which school a
student would attend. The decision of these Boards was based almost
entirely on race. These laws also created tuition grant structures which
could channel funds formerly allocated to closed schools to students so
they could attend private, segregated schools of their choice. In
practice, this caused the creation of "segregation academies".
History
On January 11, 1957, U.S. district judge Walter E. Hoffman, in consolidated cases concerning Norfolk's schools,
declared the Pupil Placement Act unconstitutional. However, this
decision was on appeal as the next school year started. Nonetheless,
Virginians could see that President Eisenhower was willing to use the National Guard to enforce a similar decision in Little Rock, Arkansas. In November 1957, Virginians elected Attorney General J. Lindsay Almond, another member of the Byrd Organization, to succeed Stanley as governor.
Closed schools in Norfolk, Charlottesville, and Warren County
Governor Almond took office on January 11, 1958, and soon matters had come to a head. Federal courts ordered public schools in Warren County, the cities of Charlottesville and Norfolk and Arlington County
to integrate, but local and state officials appealed. Local authorities
also tried delaying school openings that September. When they opened
late in the month, Almond ordered various schools subject to federal
court integration orders closed, including Warren County High School, two City of Charlottesville schools (Lane High School
and Venable Elementary School), and six schools in the City of Norfolk.
Warren County (Front Royal) and Charlottesville cobbled together
education for their students with the help of churches and philanthropic
organizations such as the American Friends Service Committee.
The larger and poorer Norfolk school system had a harder time—one-third
of its approximately 10,000 students did not attend any school. A group
of families whose white children were locked out of the closed Norfolk
schools also sued in federal court on the grounds that they were not
being granted equal protection under the law, since they had no schools. Ironically, a Norfolk parochial school, Blessed Sacrament, had accepted its first black pupil in November 1953, even before Brown.
Moderate white parents throughout Virginia that fall formed local
committees to Preserve our Schools, as well as conducting letter
writing and petition campaigns. When Almond refused to allow Norfolk's
six previously all-white junior and senior high schools to open in
September, that local parents' group was renamed the Norfolk Committee
for Public Schools. In December 1958 various similar committees
statewide combined under an umbrella organization called the Virginia
Committee for Public Schools. Furthermore, 29 prominent businessmen met
with Governor Almond in that same month and told him that massive
resistance was hurting Virginia's economy. Almond responded by calling for a "Pilgrimage of Prayer" on January 1, 1959.
James v. Almond was heard in November 1958, and the
3-judge panel of federal district judges gave their decision on January
19, 1959, Virginia's traditional holiday celebrating Confederate generals Robert E. Lee and Stonewall Jackson, declaring for the plaintiffs and ordering that the schools be opened. On the same day the Virginia Supreme Court issued Harrison v. Day,
and found that Governor Almond had violated the state constitution by
closing schools, despite the other provision which had required
segregation and which was invalid after Brown. While the Virginia
Supreme Court found that funnelling local school funds through the new
state agency violated another state constitutional provision, it
condemned the U.S. Supreme Court's Brown decision as showing lack of
judicial restraint and respect for the sovereign rights of the
Commonwealth and allowed the tuition grant program to continue through
local authorities. Shortly thereafter, Edward R. Murrow aired a national TV documentary titled The Lost Class of '59
that highlighted the Norfolk situation. Nonetheless, Norfolk's
government, led by Mayor Duckworth, attempted to prevent the schools'
reopening by financial maneuvering, until the same 3-judge federal panel
found again for the plaintiffs.
Charlottesville, Virginia
Massive resistance in Charlottesville was prompted when Federal Judge John Paul
ordered the Charlottesville School Board to end segregation commencing
when schools were to open in September, 1956. Twelve students, whose
parents had sued for the right to transfer, were to attend two all-white
schools: three Burley High School students would attend Lane High School and nine Jefferson School elementary students would attend Venable Elementary School.
The students became known as "The Charlottesville Twelve." The decree
was received in Charlottesville on August 7, 1956. City Attorney John S. Battle indicated their intent to appeal the decree.
Arlington loses its school board
While
campaigning in Arlington before his election, Almond had said that he
favored a more flexible approach to school desegregation than Byrd's
massive resistance.
In 1946, when the nearby District of Columbia schools started charging
fees for black children from Arlington, the suburban city/county
combination with a burgeoning population of federal civil servants had
petitioned a special session of Virginia's General Assembly for the
right to hold a referendum to become the only Virginia community with an
elected school board. In October 1948, the Virginia Supreme Court
upheld that new board against a challenge raised by the old appointed
board.
However, even the new board's policy of building and improving schools
proved inadequate given the county's financial limitations; black
students were still sent to segregated and inferior schools, including Hoffman-Boston School for the small number of black middle and high school students. A federal lawsuit was initially dismissed by U.S. District Judge Albert V. Bryan,
but in June 1950 the U.S. Circuit Court of Appeals for the Fourth
Circuit had ordered the county to provide equal facilities for blacks,
and equal pay for black teachers.
Arlington's Catholic schools integrated almost immediately after Brown v. Board of Education, with no disorder or public outcry.
However, when Arlington's elected school board announced in January
1956 that it planned to begin integration in selected schools, shortly
before the General Assembly met, it soon found that the state would not
allow localities to determine their own positions on racial matters.
The legislature dismantled Arlington's elected public school board,
instead allowing the conservative Arlington County Board to appoint
school board members. This—with other aspects of massive
resistance—delayed Arlington's public school integration for years.
County voters (95% white) had voted in early 1956 against the Gray
Commission's proposals, although that referendum passed statewide.
However, the American Nazi Party at that time maintained its headquarters in Arlington, and it, with the Defenders of State Sovereignty and Individual Liberties (a segregationist group), disrupted school board meetings and distributed tracts against integration.
Arlington's new appointed school board delayed integration, so
the NAACP filed another lawsuit in May 1956 demanding desegregation,
similar to lawsuits filed in three other Virginia counties.
Arlingtonians also formed a Committee to Preserve Public Schools to keep
their schools open against threats of massive resistance proponents.
This time, Judge Bryan, on July 31, 1956, ordered Arlington's school
integrated. However, his injunction lacked teeth. He did not try to
circumvent the Pupil Placement Act passed that summer, aware that not
only had the Commonwealth again appealed his ruling to the Fourth
Circuit (which was also considering desegregation lawsuits from
Southside Virginia), the Virginia Supreme Court would soon rule on
challenges to the Pupil Placement Act's validity based on Virginia's
constitution. Meanwhile, Arlington parents hoped for peaceful
desegregation, but believed strongly that northern Virginians should not
lead the statewide movement of moderates, but instead jointly resolve
their situation with those in Norfolk, Charlottesville and Front Royal.
After the federal and state court decisions of January 19, 1959
struck down the new Virginia mandatory closing law, Arlington integrated
its Stratford Junior High School (now called H-B Woodlawn) on February 2, 1959,
the same day as Norfolk integrated its schools. The Arlington County
Board's new chairman proudly called the massively prepared-for event,
"The Day Nothing Happened".
Perrow Commission
Having lost James v. Almond and Harrison v. Day,
Governor Almond publicly reversed his defiant stance within a few
months. The special legislative session formed a commission led by Mosby Perrow Jr. of Lynchburg,
which issued a report backing acceptance of limited desegregation,
leaving the burden on black parents, repealing the compulsory attendance
law in favor of a "school choice" program and relying on the Pupil
Placement Board to keep desegregation to a minimum. Almond's legislative
plan barely passed despite the Byrd Organization's opposition.
This earned Senator Byrd's wrath, and after Almond's term expired, Byrd
tried to block Almond's appointment as a federal judge by President John F. Kennedy,
although Almond was confirmed and served on the U.S. Court of Customs
and Patent Appeals from June 1963 until his death in 1986.
Perrow also paid a price, for he failed to win reelection, losing to a
challenger in the next Democratic primary, although Perrow later served
as President of the Virginia State Board of Education.
Prince Edward County
Despite Davis v. County School Board of Prince Edward County being one of the companion cases in Brown v. Board of Education, Prince Edward County schools took even longer to desegregate.
The county's board refused to appropriate any money to operate the
schools, which closed rather than comply with the federal desegregation
order effective September 1, 1959.
It was the only school district in the country to resort to such
extreme measures. White students took advantage of state tuition
vouchers to attend segregation academies (as discussed below), but black
students had no educational alternatives within the county. Edward R. Murrow brought such students' plight to national attention.
Finally, in 1963, Prince Edwards' schools were ordered to open, and
when the Supreme Court agreed to hear the county's appeal, supervisors
gave in rather than risk prison. Then 1964, the U.S. Supreme Court decided Griffin v. County School Board of Prince Edward County,
and segregationists could appeal no longer. However, when Prince Edward
County's schools opened on September 8, 1964, all but 8 of the 1500
students were black, and observers noted the difference between the
black children sent elsewhere for education by the American Friends
Service Committee, and those who remained unschooled through the hiatus
and became the "crippled generation."
During the county's public school closure, white students could attend Prince Edward Academy, which operated as the de facto
school system, enrolling K-12 students at a number of facilities
throughout the county. Even after the re-opening of the public schools,
the Academy remained segregated, although it briefly lost its tax-exempt
status in 1978 for its discriminatory practices. White students
gradually drifted back to the public schools as tuition at the Academy
crept higher. In 1986, Prince Edward Academy changed its admission
policies and began accepting black students, but few non-whites attend
the school. Today it is known as the Fuqua School.
Public schools in the Commonwealth's western counties that lie outside the Black Belt,
and have much smaller black populations, were integrated largely
without incident in the early 1960s. By the fall of 1960, NAACP
litigation had resulted in some desegregation in eleven localities, and
the number of at least partially desegregated districts had slowly risen
to 20 in the fall of 1961, 29 in the fall of 1962, and 55 (out of 130
school districts) in 1963. However, by 1963, only 3,700 black pupils or
1.6% of Virginia's black student population attended integrated schools.
For example, Warren County High School re-opened as a de facto all-black school after no white students enrolled. Their parents had opted instead to send their children to the John S. Mosby Academy, one of many segregation academies — private schools opened throughout the state as part of the massive resistance plan.
Over the course of the 1960s, white students gradually returned
to Warren County High School, with the Mosby Academy eventually becoming
the county's middle school.
Multiple school systems replaced massive resistance with "Freedom of Choice"
plans, under which schools allowed families and students to opt to
attend the public schools of their choice. This way, schools were able
to comply with court rulings against segregation, while remaining
partially or fully segregated in practice.
Court-ordered busing: Richmond and back to Norfolk
The Richmond City Public Schools
had attempted various schemes to avoid integration, including dual
attendance zones and the "Freedom of Choice" Plan. After an unsuccessful
annexation suit against Henrico County to the north, the city successfully annexed 23 square miles (60 km2) of neighboring Chesterfield County to its south on January 1, 1970 in what the federal court later determined to be an attempt to stem white flight, as well as dilute black political strength. In 1970, District Court Judge Robert Merhige Jr.,
ordered a desegregation busing scheme established to integrate Richmond
schools. However, beginning the following school year, thousands of
white students did not go to the city's schools, but instead began
attending existing and newly formed private schools and/or moving
outside the city limits.
A forced consolidation of the Richmond City, Chesterfield County
and Henrico County public school districts was proposed and approved by
Judge Merhige in 1971, but the Fourth Circuit Court of Appeals
overturned this decision, barring most busing schemes that made students
cross county/city boundaries. Richmond City Schools then went through a series of attendance plans and magnet school
programs. By 1986, Judge Merhige approved a system of essentially
neighborhood schools, ending Virginia's legal struggles with
segregation.
In 1970, the Norfolk City Public Schools
and several other Virginia communities were also subjected to busing
schemes, also returning to more or less neighborhood school plans some
years later.
Bussing plans were implemented in school districts across the
north and south as well. White women, specifically mothers, who were
pro-integration staunchly opposed bussing. Evidently, the racist beliefs
that upheld massive resistance were not isolated in the south. Massive
resistance was formed in response to legislation yet the racist motive
behind the movement persisted across the country as displayed by
protests against bussing plans.
Aftermath
Virginia experienced no incidents which required National Guard intervention. In 1969, Virginians elected Republican A. Linwood Holton Jr.,
who had opposed massive resistance and labeled it "the state's
pernicious anti-desegregation strategy," as governor. The following
year, Gov. Holton placed his children (including future Virginia First
Lady Anne Holton) in Richmond's mostly African-American public schools,
to considerable publicity. He also increased the number of blacks and
women employed in the state government and in 1973 created the Virginia Governor's Schools Program.
Furthermore, when Virginia revised its state constitution in 1971, it
included one of the strongest provisions concerning public education of
any state in the country.
In 2009, as part of their "American Soil Series", the Virginia Stage Company featured Line in the Sand,
a play by Chris Hannah. It reflects the emotions and tensions in
Norfolk during massive resistance in both the political arena and
through the eyes of the students of the "Lost Class".
On July 16, 2009, the Richmond Times-Dispatch apologized in an editorial for its role and the role of its parent company and its sister newspaper, The Richmond News Leader, in championing massive resistance to human rights, acknowledging that "the Times-Dispatch
was complicit" in an "unworthy cause": "The record fills us with
regret, which we have expressed before. Massive Resistance inflicted
pain then. Memories remain painful. Editorial enthusiasm for a dreadful
doctrine still affects attitudes toward the newspaper."
At the Episcopal Diocese of Southern Virginia's service of Repentance, Reconciliation & Healing on November 2, 2013, specific mention was made of the actions of C. G. Gordon Moss, Dean of Longwood College in attempting to heal the divisions in Prince Edward County in 1963, and the retaliation he experienced. Several months earlier, the vestry of Johns Memorial Episcopal Church in Farmville, Virginia issued a similar apology during the 50th anniversary commemoration of the school closings.
Most segregation academies founded in Virginia during Massive
Resistance are still thriving more than a half century later and some
like Hampton Roads Academy, the Fuqua School, Nansemond-Suffolk Academy and Isle of Wight Academy continue to expand in the 21st century. Enrollment at Isle of Wight Academy now stands at approximately 650 students, the most ever enrolled at the school.
In 2016 Nansemond Suffolk Academy opened a second campus, that includes
an additional 22,000 square foot building for students in
pre-kindergarten through grade 3.
All of these schools had officially adopted non-discrimination policies
and begun admitting non-white students by the end of the 1980s and like
other private schools, are now eligible for federal education money
through what are known as Title programs that flow through public school
districts.
However, few blacks can afford the high cost of tuition to send their
children to these private schools. In some cases their association with
"old money" and past discrimination still cause some tension in the community, especially among non-whites and students of the local public schools.
Their racist past may cause black parents who can afford the tuition
to be reluctant to enroll their children in these schools.
The abandonment of public schools by most whites in Virginia's rural counties that lie within the Black Belt
and white flight from inner cities to suburbs after the failure of
"Massive Resistance" has ultimately led to increasingly racially and
economically isolated public schools in Virginia. In total, as of 2016
there were 74,515 students in these isolated schools, including 17
percent of all black students in Virginia’s public schools and 8 percent
of all Hispanic students. Many of these isolated schools are inner
city schools in Richmond, Norfolk, Petersburg, Roanoke, and Newport
News. In contrast, less than 1 percent of Virginia's non-Hispanic white
students attended these isolated schools.
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
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
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's challenge to the ecclesiastical courts 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.
History
Neither the reasons nor the history behind the right to silence are entirely clear. The Latin brocardnemo 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 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 of perjury (if they lied under oath to protect themselves), harsh punishment for contempt of court
(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'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,
"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 (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 (such as Commonwealth
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.
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,
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
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 protections.
Worldwide
Warnings of a right to remain silent are given in approximately 108 nations around the world.
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. As a general rule judges cannot direct juries to
draw adverse inferences 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 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'sCompanion rule. The basic position is adverse inference
may not be drawn about the defendant's culpability, where he/she does
not answer police questions. While this is the common law position, it
is buttressed by various legislative provisions. Some investigations can
strip the right, such as those undertaken by the Independent Commission Against Corruption.
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 accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel,
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 is 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 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
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, the Charter warning is read in Canadian French. In New Brunswick and Ottawa,
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. Additionally, even if
the suspect directly asserts his decision to remain silent, the police
may continue the interrogation. 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,
where 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 themselves, where an accused freely
chooses to take the witness box
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
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. 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
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, 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,
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, was adopted by the European Parliament
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.
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.
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.
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 and the defencecounsel 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.
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 Strafprozessordnung [de] (StPO, i.e. Criminal Procedure Code)
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 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, Cantonese or Mandarin:
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."
According to Jessica Wing-kay Chiu (趙穎琦), then a PhD candidate of the University of Hong Kong, 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 and lie detector tests violate of Article 20(3).
Israel
In Israel,
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 under Article 38(1), no person is allowed to testify against themselves.
Latvia
In Latvia, the Criminal procedure law (Kriminālprocesa likums)
(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 JusticeSian 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 where Justice Cooke held, "The starting point ... [is], unless an Act of Parliament
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."
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:
I am speaking to you about/You have
been detained for/You have been arrested for [offence]. You have the
right to remain silent. You do not have to make any statement. Anything
you say will be recorded and may be given in evidence in court. You have
the right to speak with a lawyer without delay and in private before
deciding to answer any questions. Police have a list of lawyers you may
speak to for free.
The caution to be given to children and young persons under 17 is:
I am speaking to you about/You have
been detained for/You have been arrested for [offence]. You have the
right to remain silent. You do not have to make any statement or answer
any questions. If you agree to make a statement and/or answer any
questions you can change your mind and stop at any time. Anything you
say will be recorded and may be given in evidence in court – this means
if you are taken to court for [offence] what you say to me may be retold
to the judge or jury. You have the right to speak with a lawyer and/or
any person nominated by you without delay and in private before deciding
whether to make any statement or answer any questions. You have the
right to have your lawyer and/or nominated person with you while you
make any statement or answer any questions. Police have a list of
lawyers you may speak to for free.
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.
Any person under investigation for
the commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services
of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
This was expanded into a caution during arrest under Republic Act 7438. Previously, informing arrested persons of their rights occurred long after arrest, if it ever occurred at all.
Any public officer or employee, or
anyone acting under his order or his place, who arrests, detains or
investigates any person for the commission of an offense shall inform
the latter, in a language known to and understood by him, of his rights
to remain silent and to have competent and independent counsel,
preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under custodial
investigation. If such person cannot afford the services of his own
counsel, he must be provided with a competent and independent counsel by
the investigating officer.
— Section 2(b), RA7438
Section 17 of the Bill of Rights further states that "[n]o 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 so as to avoid self-incrimination.
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 was asked to consider the case of Larry Mahinay y Amparado, a man convicted of the rape and murder 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 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:
There being no evidence presented
to show that said confession were obtained as a result of violence,
torture, maltreatment, intimidation, threat or promise of reward or
leniency nor that the investigating officer could have been motivated to
concoct the facts narrated in said affidavit; the confession of the
accused is held to be true, correct and freely or voluntarily given.
But the court also declared the following, which has since become a landmark decision in the rights of the accused in the Philippines, and is sometimes referred to as the Mahinay doctrine:
It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments:
The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and understood by
him of the reason for the arrest and he must be shown the warrant of
arrest, if any; Every other warnings, information or communication must
be in a language known to and understood by said person;
He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him;
He must be informed that he has the right to be assisted at all
times and have the presence of an independent and competent lawyer,
preferably of his own choice;
He must be informed that if he has no lawyer or cannot afford the
services of a lawyer, one will be provided for him; and that a lawyer
may also be engaged by any person in his behalf, or may be appointed by
the court upon petition of the person arrested or one acting in his
behalf;
...
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 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."
You are arrested for the crime of _________ (or by virtue of Warrant
of Arrest, showing him the warrant as it is practicable) You have the
right to remain silent. Any statement you make may be used for or
against you in a court of law . You have the right to have a competent
and independent counsel preferably of your own choice, and if you cannot
afford the services of a counsel, the government will provide you one.
Do you understand these rights?
Ikaw ay inaaresto sa salang _________ (o sa pamamagitan ng kautusan
ng pag-aresto, ipakita ito kung nararapat). Ikaw ay may karapatang
manahimik o magsawalang kibo. Anuman ang iyong sabihin ay maaring
gamitin pabor o laban sa iyo sa anumang hukuman. Ikaw ay mayroon ding
karapatang kumuha ng tagapagtanggol na iyong pinili at kung wala kang
kakayahan, ito ay ipagkakaloob sa iyo ng pamahalaan. Nauunawaan mo ba
ito?
Anti-torture warning
You have the right to demand physical examination by an independent
and competent doctor of your choice. If you cannot afford the services
of a doctor, the state shall provide one for you.
Ikaw ay may karapatang magpatingin sa isang mapagkakatiwalaang
doktor na sarili mong pinili. Kung wala kang kakayahang kumuha ng iyong
doktor, ikaw ay pagkakalooban ng libre ng estado o pamahalaan.
According to the website of the Philippine National Police Regional Office 13, at Camp Rafael C Rodriguez in Butuan,
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 [officer]."
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 [1995] 1 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
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.
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, 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:
An officer or private citizen
conducting an arrest must without delay bring the arrestee to the
judicial police office under section 83. Upon arriving there, the
arrestee must be delivered to an administrative or police officer
thereof to further be dealt with as follows:
(2) In cases the arrest is conducted by a private citizen, the
administrative or police officer receiving the arrestee shall draw up a
record of the name, occupation and address of the citizen, including the
information and circumstances as to the arrest as well, and require the
citizen to sign such record. The officer shall then inform the male
arrestee of the charge and detailed grounds for his arrest, and
enlighten him that he has the right to remain silent and anything he says can and will be used as evidence in a trial.
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:
A person shall not bear
responsibility for refusing to testify or to explain anything about
himself or herself, members of his or her family or close relatives in
the degree determined by law.
A suspect, an accused, or a defendant has the right to a defense.
A convicted person enjoys all human and citizens' rights, with the
exception of restrictions determined by law and established by a court
verdict.
The Criminal Process Code of Ukraine has some regulations on how the rights of suspects and accused. Section 2 of Article 21 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":
The following person is considered to be a suspect:
1) a person apprehended on the suspicion of having committed a crime;
2) a person in whose respect a measure of restraint has been imposed before the decision to prosecute him/her has been made.
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 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.
The right to silence has a long history in England and Wales, first having been codified in the Judges' Rules in 1912. A defendant in a criminal trial has a choice whether or not to give evidence in the proceedings. 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, 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
(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 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. In 1912, the judges of the King's Bench issued the Judges' Rules.
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
[1914] 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:
... an innocent person might well,
either from excessive caution or for some other reason, decline to say
anything when charged and cautioned, and if it were possible to hold
that out to a jury as a ground on which they might find a man guilty, it
is obvious that innocent persons might be in great peril.
Therefore, a caution of the form of:
You have the right to remain silent, but anything you do say will be taken down and may be used in evidence.
was used. Major reform to the questioning and treatment of suspected offenders occurred in 1984 when the Police and Criminal Evidence Act
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).
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 suspect's right to a fair trial. In John Murray v United Kingdom, the ECHR
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."
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 can be drawn by an accused person's silence when they are interviewed under caution.
The Fifth Amendment to the United States Constitution 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 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 are covered by the Uniform Code of Military Justice
(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.