NCJ Number
169227
Journal
Journal of Criminal Law and Criminology Volume: 87 Issue: 2 Dated: (Winter 1997) Pages: 521-543
Date Published
1997
Length
23 pages
Annotation
England's new limits to the right to silence allow judges and juries to consider as evidence of guilt both a suspect's failure to answer police questions during interrogation and a defendant's refusal to testify during trial; the author of this paper previously wrote an article that criticized these mandates, to which Barton L. Ingraham wrote a reply to support England's new policy on the "duty to talk." The current article is the author's reply to Ingraham.
Abstract
In his original article, the author, along with others, argued that limiting the right to silence would have significant effects on the accusatorial system of justice, because the right exists to stall the engine that drives the inquisitorial system: the power to encourage, require, or force individuals to answer to government questioning. By adopting the use of adverse inferences from the refusal to speak, England has curtailed the right to silence and replaced it with a "duty to talk." In addition to defending England's new law, Ingraham offered his own proposal for, among other things, imposing a duty to talk and reducing the standard and burden of proof. In his reply to Ingraham, the author argues that if, as Ingraham believes, there are no practical effects from curtailing the right to silence, no increase in confessions or convictions, and no reduction in crime, it seems unreasonable for society to risk the costs of such a change, such as increasing the conviction of the innocent and abuse by officials, as well as the accretion of government power at the expense of individuals' privacy and autonomy. 151 footnotes