Share to: share facebook share twitter share wa share telegram print page

Self-incrimination

In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution.[1] Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.[2]

In many legal systems, accused criminals cannot be compelled to incriminate themselves—they may choose to speak to police or other authorities, but they cannot be punished for refusing to do so. There are 108 countries and jurisdictions that currently issue legal warnings to suspects, which include the right to remain silent and the right to legal counsel.[3] These laws are not uniform across the world; however, members of the European Union have developed their laws around the EU's guide.[4]

Canadian law

In Canada, similar rights exist pursuant to the Charter of Rights and Freedoms. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c) states:

Any person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence ...

An important caveat in Canadian law is that this does not apply to a person who is not charged in the case in question.[5] A person issued a subpoena, who is not charged in respect of the offence being considered, must give testimony. However, this testimony cannot later be used against the person in another case. Section 13 of the Charter states:

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Historically, in Canadian common law, witnesses could refuse to give testimony that would self-incriminate. However, section 5(1) of the Canada Evidence Act eliminated that absolute common law privilege by instead compelling witnesses to testify. In exchange, section 5(2) of the same act granted the witnesses immunity from having that evidence used against them in the future except in the case of perjury or impeachment. While these provisions of the Canada Evidence Act are still operational, they have been overtaken in their application by the immunities granted by sections 13 and 7 of the Canadian Charter of Rights and Freedoms.[6]

Chinese law

After 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."[7] In 2012 the law was also re-amended to strengthen the human rights protection of criminal suspects.[8] China has since recognized the right against self-incrimination and forced confessions are prohibited by law. However, in practice as human rights violations in China continue to be committed, it is still common practice for police to use torture on suspects to obtain forced confessions.[9] China's accession to the United Nations's International Covenant on Civil and Political Rights in 1998 also guarantees Chinese citizens the right against self-incrimination; however, China has not ratified the treaty.[10]

Indian law

In India, under Article 20 (3) of the Constitution, the defendant has the right against self-incrimination, but witnesses are not given the same right.[11]

A defendant must be informed of their rights before making any statements that may incriminate them. Defendants must not be compelled to give any statements. In the case that a defendant is pressured into giving a statement that is self-incriminating, the statement will not be admissible in a court of law.[12] The Code of Criminal Procedure and the Indian Constitution give defendants the Right to Silence, i.e. the right to withhold self-incriminating information to authorities. Defendants must inform the authorities that they are exercising their Right to Silence; withholding information is not considered using their right to withhold information that can potentially be self-incriminating.[12] In order to exercise their right to remain silent, the defendant must verbally and clearly state that they are doing so. For example, a defendant can say, "I am exercising my right to remain silent and will not be answering any further questions."[12] Article 20 (3) does not pertain to those who made a confession willingly without being intimidated or coerced into making such statement.[13]

English and Welsh law

The right against self-incrimination originated in England and Wales.[14] In countries deriving their laws as an extension of the history of English common law, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination.

The current statutory basis for the privilege against self-incrimination for defendants in criminal trials in England and Wales is the Criminal Evidence Act 1898 s1(2) (as amended):[15][16]

a person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings

Applying to England and Wales, the Criminal Justice and Public Order Act 1994 amended the right to silence by allowing inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation. In other words, the jury is entitled to infer that the accused fabricated the explanation at a later date, since the accused refused to provide the explanation during the time of the police questioning. The jury is also free not to make such an inference.[17]

Scots law

In Scots criminal and civil law, both common and statute law originated and operate separately from that in England and Wales. In Scots law, the right to silence remains unchanged by the above, and juries' rights to draw inferences are severely curtailed.

On January 25, 2018, the law in Scotland changed in regard to people being detained by police. These changes only affect people who are arrested after January 25, 2018. Those who are arrested have 'the right to remain silent' and are not obligated to answer questions asked by police. However, although someone being detained by police does not need to answer questions regarding the crime they are accused of, it is mandatory for detainees to answer basic questions of identity such as: name, date of birth, address, and nationality.[18]

United States law

The Fifth Amendment to the United States Constitution protects the accused from being forced to incriminate themselves in a crime. The Amendment reads:

No person ... shall be compelled in any criminal case to be a witness against himself ...[19]

Additionally, under the Miranda ruling, a person also has the right to remain silent while in police custody so as not to reveal any incriminating information. In order to invoke this constitutional right to remain silent, a person must explicitly and unambiguously tell officers that they are exercising this right to remain silent.[12] Therefore, staying silent without a prior exclamation that one is exercising this constitutional right does not invoke the right.[12]

In Miranda v. Arizona (1966) the United States Supreme Court ruled that the Fifth Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect interrogated in custody of them their right to remain silent and their right to an attorney.[20][21] Justice Robert H. Jackson further notes that "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances".[22]

Miranda warnings must be given before there is any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way".[23] Suspects must be warned, prior to the interrogation, that they have the right to remain silent, that anything they say may be used against them in a court of law, that they have the right to have an attorney and if one cannot afford an attorney, one will be appointed to defend such person. Further, only after such warnings are given and understood, may the individual knowingly waive them and agree to answer questions or make a statement.[24]

It is also important to note that the Fifth Amendment protects certain types of evidence, specifically testimonial evidence, which are statements that are spoken by the person in question that are made under oath.[25] For a list of other different types of evidence, see Evidence (law).

Shift in court decision regarding handcuff usage

The United States Supreme Court rulings of Miranda v. Arizona and Terry v. Ohio leave questions about the types of conduct that are appropriate for both the protection of the public, and criminal suspects' constitutional rights. The use of handcuffs on a suspect during a Terry stop infringes on their Fourth and Fifth Amendment rights.[26] During the action of handcuffing a suspect, a custodial environment is created, thereby invoking the information of that individual's Miranda rights. The Second Circuit Court maintained the notion that by utilizing handcuffs during a Terry stop, that stop is then automatically transformed into an arrest, thus warranting the reading of Miranda rights, up until the decision of US versus Fiseku.[26]

In holdings of U.S. versus Fiseku, the defendant argues that the officers’ use of handcuffs convert a Terry stop into an arrest without probable cause, thus violating his Fourth Amendment rights.[27] The District Court ruled in disagreement with this matter, suggesting that there were unusual circumstances surrounding the investigatory stop, requiring the use of handcuffs in order to ensure the protection of those officers involved. This differs from Second Circuit court rulings of the past.[26]

In the case of U.S. vs. Newton, a police officer is permitted to utilize handcuffs during a Terry stop if the officer has reason to believe that the detainee poses an immediate physical threat, and that by handcuffing the individual, the potential threat is defused in the least invasive means possible.[26]

In the case of U.S. vs. Bailey, the Second Circuit court found the officers' original stop to be constitutional, but ruled that the events which transpired after handcuffing took place fell outside the realm of a constitutional Terry stop. This results from both suspects having already been patted down and deemed unarmed.[26] At which point, the officers had no authority to handcuff either of these men, as they were already proven to be non-threatening.

In both cases, the Second Circuit court made the determination that the use of handcuffs converted these stops into arrests, and were grounds for Miranda. The ruling of U.S. versus Fiseku disrupts this conversion trend by determining otherwise.[26] The grounds for this holding are ambiguous, given the striking similarities between this court ruling and those of Newton and Bailey. The new verdict could potentially be instituted to enable police officials to impede on citizens' constitutional rights as long as the technique being used is considered to be less intrusive than that of an officer pulling his or her gun on an unarmed suspect.[26]

Truthful statements by an innocent person

An incriminating statement includes any statement that tends to increase the danger that the person making the statement will be accused, charged or prosecuted – even if the statement is true, and even if the person is innocent of any crime. Thus, even a person who is innocent of any crime who testifies truthfully can be incriminated by that testimony. The United States Supreme Court has stated that the Fifth Amendment privilege

protects the innocent as well as the guilty. ... one of the Fifth Amendment's basic functions ... is to protect innocent men ... who otherwise might be ensnared by ambiguous circumstances. ... truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth.[28]

The U.S. Supreme Court has also stated:

Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.[29]

See also

References

  1. ^ Black's Law Dictionary (5th ed.). 1979. p. 690.
  2. ^ Siegel, Larry J. (2017). Essentials of criminal justice. Worrall, John L. (Tenth ed.). Australia. ISBN 978-1305633766. OCLC 960166637.{{cite book}}: CS1 maint: location missing publisher (link)
  3. ^ Aftergood, Steven. "The Right to Remain Silent Around the World". Federation of American Scientists.
  4. ^ "Miranda Warning Equivalents" (PDF). Federation of American Scientists. The Law Library of Congress. Retrieved 24 March 2018.
  5. ^ Luban, David; O'Sullivan, Julie R.; Stewart, David P. (2010). International and transnational criminal law. New York: Aspen Publishers. ISBN 978-0735562141. OCLC 455870865.
  6. ^ Stewart, Hamish; Berger, Benjamin L.; Murphy, Ronalda; Cunliffe, Emma; Steven, Steven, eds. (2016). Evidence: A Canadian Casebook. Toronto: Emond Montgomery Publications. p. 624. ISBN 978-1-55239-680-3.
  7. ^ Values of our times : contemporary axiological research in China. Li, Deshun. Berlin: Springer. 2013. ISBN 978-3642382581. OCLC 847517553.{{cite book}}: CS1 maint: others (link)
  8. ^ China: Amendment of Criminal Procedure Law.
  9. ^ Jacobs, Harrison (November 13, 2015). "Report: Torture is routinely used in China to obtain confessions and silence human-rights lawyers". Retrieved November 2, 2018. {{cite magazine}}: Cite magazine requires |magazine= (help)
  10. ^ "China: Ratify Key International Human Rights Treaty". Human Rights Watch. 2013-10-08. Retrieved 2018-04-13.
  11. ^ aDvantage. "Privilege Against Self - Incrimination". www.legalserviceindia.com. Retrieved 5 April 2018.
  12. ^ a b c d e "Invoking the Right to Remain Silent". Findlaw. Retrieved 2018-04-06.
  13. ^ Khare, Harshit. "Privilege Against Self-Incrimination". Legal Service India. Retrieved 26 March 2018.
  14. ^ Helmholz, Richard H. (1990). "Origins of the Privilege against Self-Incrimination: The Role of the European Ius Commune". New York University Law Review. 65: 962–990.
  15. ^ "Criminal Evidence Act 1898". The National Archives.
  16. ^ David Ormerod; David Perry, eds. (2023). Blackstone’s Criminal Practice 2024 (34 ed.). Oxford University Press. F10.2. ISBN 9780198892489.
  17. ^ ’lai Oshitokunbo Oshisanya, An Almanac of Contemporary Judicial Re-statements (Almanac vols i-iii) Revised edition
  18. ^ "Being arrested: your rights". mygov.scot. Retrieved 24 March 2018.
  19. ^ "The 5th Amendment of the U.S. Constitution". National Constitution Center – The 5th Amendment of the U.S. Constitution. Retrieved 2018-02-28.
  20. ^ Illinois Institute of Technology (July 22, 2013). "MIRANDA v. ARIZONA". oyez.org.
  21. ^ Alex McBride (December 2006). "SUPREME COURT HISTORY EXPANDING CIVIL RIGHTS Miranda v. Arizona (1966)". pbs.org.
  22. ^ Watts v. Indiana, 338 U.S. 49 (1949)
  23. ^ Cornell University Law School. "Syllabus SUPREME COURT OF THE UNITED STATES 384 U.S. 436 Miranda v. Arizona CERTIORARI TO THE SUPREME COURT OF ARIZONA".
  24. ^ Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
  25. ^ Solan, Lawrence M.; Tiersma, Peter M. (2005). Speaking of Crime: The Language of Criminal Justice. Chicago & London: The University of Chicago Press. ISBN 978-0226767932.
  26. ^ a b c d e f g Flumenbaum, Martin; Karp, Brian S. "Court Shifts on Effect of Using Handcuffs During Police Encounters". The New York Law Journal. Retrieved March 28, 2019.
  27. ^ "U.S. v. Fiseku, No. 17-1222 (2d Cir. 2018)". JUSTIA- US Law. Retrieved April 19, 2019.
  28. ^ Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam).
  29. ^ Ullmann v. United States, 350 U.S. 422, 426 (1956) (footnote omitted).

Further reading

Read other articles:

بخيت وعديلة 2: الجردل والكنكةالجردل والكنكةملصق الفيلممعلومات عامةالصنف الفني كوميديتاريخ الصدور 1 يناير 1997مدة العرض 143 دقيقةاللغة الأصلية العربيةالبلد  مصرالطاقمالمخرج نادر جلالالكاتب لينين الرمليالبطولة عادل إمامشيرينالتصوير سمير فرجالموسيقى مودي الإمامالتركيب صل…

Federal electoral district of Germany 160 Dresden II – Bautzen IIElectoral districtfor the BundestagDresden II – Bautzen II in 2013StateSaxonyPopulation302,000 (2019)Electorate234,432 (2021)Major settlementsDresden (partial)RadebergArea417.7 km2Current electoral districtCreated1990PartyCDUMemberLars RohwerElected2021 Dresden II – Bautzen II is an electoral constituency (German: Wahlkreis) represented in the Bundestag. It elects one member via first-past-the-post voting. Under the current c…

هذه المقالة يتيمة إذ تصل إليها مقالات أخرى قليلة جدًا. فضلًا، ساعد بإضافة وصلة إليها في مقالات متعلقة بها. (مايو 2016) متلازمة بيدرون معلومات عامة الاختصاص علم الوراثة الطبية  من أنواع متلازمة  تعديل مصدري - تعديل   متلازمة بيردون (بالإنجليزية: Berdon syndrome)‏؛ وتعرف أيضا باس

Israeli historian and biblical archaeologist (1906-1995) Benjamin Mazarבנימין מזר‎Benjamin Mazar in 1936, at Bet ShearimBornBinyamin Zeev Maisler(1906-06-28)June 28, 1906Ciechanowiec, Russian EmpireDiedSeptember 9, 1995(1995-09-09) (aged 89)NationalityIsraeliAlma mater Berlin University Giessen University OccupationBiblical archaeologistKnown for Developed the field of historical geography of Israel President of the Hebrew University of Jerusalem Founded the Hebrew …

Цей користувач з України. Цей користувач — українець Україна Цей користувач — український патріот uk Українська мова для цього користувача є рідною. ru-5 Этот участник профессионально владеет русским языком. en-3 This user is able to contribute in English at an advanced level. Цей користувач цікави…

Bài viết này cần thêm chú thích nguồn gốc để kiểm chứng thông tin. Mời bạn giúp hoàn thiện bài viết này bằng cách bổ sung chú thích tới các nguồn đáng tin cậy. Các nội dung không có nguồn có thể bị nghi ngờ và xóa bỏ. Thiết giáp hạm Hyuga sau khi được cải biến thành một tàu sân bay lai Khái quát lớp tàuTên gọi Lớp thiết giáp hạm HyugaXưởng đóng tàu Kawasaki Heavy IndustriesMitsubishiBên kha…

North Korean political youth organizationThis article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed.Find sources: Korean Children's Union – news · newspapers · books · scholar · JSTOR (August 2013) (Learn how and when to remove this template message) Korean Children's Union조선소년단Chosŏn SonyeondanEmblem of Korean Children's Un…

Swedish Eurovision Song Contest preselection For this year's edition, see Melodifestivalen 2023. For the upcoming edition, see Melodifestivalen 2024. MelodifestivalenLogo since 2016Also known as Melfest Mello GenreSong contestPresented byList of presentersCountry of originSwedenOriginal languageSwedishNo. of episodes63 editionsProductionProduction locationMultiple cities in Sweden (Host cities)Running time 1 hour 30 minutes (heats and second chance round) 2 hours (final) Production companySverig…

Комітет Верховної Ради України з питань освіти, науки та інновацій — утворений 29 серпня 2019 у Верховній Раді України IX скликання[1]. У складі комітету 13 депутатів, голова Комітету — Бабак Сергій Віталійович. Зміст 1 Склад 2 Предмет відання 3 Див. також 4 Примітки 5 Посила…

Welsh explorer (1876–1912) This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed.Find sources: Edgar Evans – news · newspapers · books · scholar · JSTOR (March 2022) (Learn how and when to remove this template message) Not to be confused with Lieutenant E. R. G. R. Teddy Evans, Scott's second-in-command on the Terra Nova expedit…

Faculty in Banaras Hindu University Faculty of Commerce, Banaras Hindu UniversityTypeFacultyEstablished1940Parent institutionBanaras Hindu UniversityDeanProfessor Dr.G.C.R.JaiswalLocationVaranasi, Uttar Pradesh, India25°16′08″N 82°59′28″E / 25.268972°N 82.991232°E / 25.268972; 82.991232CampusUrbanAffiliationsUGCWebsiteFaculty of Commerce Faculty of Commerce, Banaras Hindu University (FOC-BHU), also known as Shri Thakur Ratan Pal Singh Faculty of Commerce[c…

Civil parish in Azores, PortugalRibeirinhaCivil parishA partial view of the main residential enclave of Ribeirinha, along the northern slope of the Pedro Miguel GrabenLocation of the civil parish of Ribeirinha within the municipality of HortaCoordinates: 38°35′25″N 28°36′48″W / 38.59028°N 28.61333°W / 38.59028; -28.61333Country PortugalAuton. regionAzoresIslandFaialMunicipalityHortaEstablishedSettlement: fl.1600Parish: fl.1643Area • Total12.26…

1940s class of aircraft carrier of the United States Navy This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed.Find sources: Essex-class aircraft carrier – news · newspapers · books · scholar · JSTOR (January 2013) (Learn how and when to remove this template message) USS Philippine Sea (CVA-47) underway in 1955 Class overview Nam…

American baseball player For the former Gaelic football player and manager, see Jim Brosnan (Gaelic footballer). This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed.Find sources: Jim Brosnan – news · newspapers · books · scholar · JSTOR (September 2021) (Learn how and when to remove this template message) Baseball player Jim Bro…

Inhaltsverzeichnis 1 Könige von Sri Lanka 2 Könige von Kandy 3 Könige von Portugal und Generalkapitäne von Ceilaõ 4 Niederländische Gouverneure von Ceylon 5 Britische Gouverneure von Ceylon 6 Generalgouverneure des Dominion Ceylon 7 Präsidenten von Sri Lanka 8 Weblinks 9 Einzelnachweise Könige von Sri Lanka Die Insel bzw. das Königreich trug im Verlauf der Jahrhunderte verschiedene Namen, darunter Laṃkā, Tāmraparnī, Singhala, Silan und Sarandib; mehr dazu im Artikel Sri Lanka. Vija…

Generasi Pertama (1G) ponsel Motorola 4500X yang berjaringan TACS Total Access Communication System (dalam Bahasa Indonesia artinya Sistem Akses Komunikasi Total) atau disingkat TACS adalah sistem komunikasi analog bergerak (mobile) yang digunakan di Inggris, Irlandia, dan sejumlah negara lain sejak tahun 1983 hingga akhir 1990-an.[1] TACS menggunakan sistem FM analog yang beroperasi di pita frekuensi 890-915 MHz/935-960 MHz dan dapat menangkap hingga 1,320 saluran.[2] …

Sastra India merujuk pada sastra yang dibuat di subkontinen India sebelum 1947 dan di Republik India pada masa setelahnya. Republik India memiliki 22 bahasa resmi. Penghargaan Persekutuan Akademi Sahitya Penghargaan Jnanpith Penghargaan Akademi Sahitya Vyas Samman Saraswati Samman Penghargaan Akademi Paschimbanga Bangla Lihat pula Puisi epik India Sastra India (jurnal) Puisi India Sastra dari India Timur Laut Sekolah Sastra Stephanian Pranala luar Indian Literature on Indohistory Diarsipkan 2019…

Elvira, Vira Stone, A Woman of the Century (ca. 1865) Elvira Stone (September 13, 1816 – January 9, 1900) was an American postmaster, genealogist, and teacher. She served as postmaster at North Oxford, Massachusetts from 1857 and as a member of the school board, 1870–73. Interested in genealogical researches, she traced out the descendants of Gen. Ebenezer Learned and much of that part of this work which deals with the Oxford families, was supplied by her.[1] Biography Martha Elvira …

American metalcore band ConvergeConverge in Tokyo, Japan in February 2019Background informationAlso known asShattered Void[1]OriginSalem, Massachusetts, U.S.Genres Metalcore hardcore punk mathcore post-hardcore Years active1990–presentLabels Equal Vision Deathwish Epitaph Undecided Members Jacob Bannon Kurt Ballou Nate Newton Ben Koller Past members Jeff Feinberg Damon Bellorado Joe Monaco Aaron Dalbec Stephen Brodsky John DiGiorgio Websiteconvergecult.com Converge is an American metal…

Transdermal patch applied to prevent pregnancy Evra patch redirects here. For the brand of patch containing estradiol only, see Evorel patch. Contraceptive patchOrtho Evra brand of contraceptive patchBackgroundTypeHormonal (combined estrogen + progestin)First use2002Failure rates (first year)Perfect use0.3%[1]Typical use9%[1]UsageUser remindersWeekly application for 3 weeksClinic review3-6 monthlyAdvantages and disadvantagesSTI protectionNoWeightNo proven effectPeriod advantagesR…

Kembali kehalaman sebelumnya

Lokasi Pengunjung: 3.14.143.212