Research Handbooks in Comparative Law series
Edited by Jacqueline E. Ross and Stephen C. Thaman
Chapter 9: Silence, self-incrimination, and hazards of globalization
Criminal prosecutions are easier for the government if, rather than the government having to prove its case, the accused confesses to the charges and the only issue that remains is the sentence to be imposed. However, when criminal cases are resolved on the basis of the accused’s own words, significant risks emerge. Most seriously, there is the risk that the accused has confessed falsely in order to avoid physical pain at the hands of his inquisitors. Or, perhaps, the accused was tricked into confessing after many rounds of clever questioning. Aside from these and related issues of the treatment of suspects and the reliability of resulting confessions, the government’s capacity to send people to prison vastly increases if it need not be burdened with investigating a case, compiling an evidentiary record, and proving its account in court. Conviction by confession also circumvents the role of the public – in the jury box and beyond – in monitoring the government’s uses and abuses of its prosecutorial tools.For more than four centuries adversarial systems of criminal justice have protected against these risks by recognizing two rights for those accused of crimes: the right to remain silent and the right (or privilege) against self-incrimination. These rights are distinct: the first protects the ability of the accused to say nothing when questioned during the course of criminal proceedings, while the second protects the accused from having his words used as evidence in the government’s case against him.
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