The Right of Silence of Crime Suspects is an Unnecessary Clog in the Wheels of Justice

1. Introduction
The right of silence is considered as a representation of several interlocking fundamental
legal principles of the criminal justice process in several jurisdictions globally.1 The right
ensures that suspects questioned by police and defendants in a criminal trial can remain silent
without any detrimental legal consequence. The privileges of the right of silence, which exist
as a shield for the innocent and guilty, include protection from adverse consequences of
inferences for lack of cooperation in the investigation process, protection from selfincrimination, security from torture and mistreatment directed to obtaining confessions
during investigation; and from being required to testify in proceedings against themselves.
Controversies have persistently trailed the relevance of the right to silence to criminal justice
systems. In recent years however, especially in the wake of several global terrorist attacks,
this long held established bundle of legal protection is noticeably straining from its hallowed
status. Jurists, politicians and academics alike in several jurisdictions are entwined in debates
pertaining to whether the right of silence is an obstruction in ensuring that the criminal justice
system operates effectively.
Employing the features of the common and civil law traditions and referring to international
law where necessary, this essay argues that the existence of the right serves a greater good
than the 'clog to the justice system', which adversaries identify, especially in any society
1

Lord Mustill affirms clearly in R. v. Director of Serious Fraud Office, ex parte Smith [1992] 3 Weekly Law
Reports 66/ [1992] 3 All ER 456 at 463-464 that the right to silence does not denote any single right but rather
refers to a disparate group of immunities. The court identifies six immunities covered by the right to silence.
See also the case of John Murray v. United Kingdom (1996) I ECtHR 30/ 22 E.H.R.R. 29 (ECHR). This essay
views the right to silence as the covering principle of all immunities that protect a crime suspect against the
abuse of power of those investigating and prosecuting crimes. See generally J Michael and B Emmerson,
'Current Topic: The Right to Silence' (1995) 1 European Human Rights Law Review 4,6

where the criminal justice system suffers from abuse of process and powers of office by
government officials. The essay asserts that contrary to claim by adversaries, there is
insufficient evidence to show that the right to silence significantly obstruct the search for
truth during criminal investigations and trials. The views expressed in this essay cumulate in
the conclusion that the core of the existence of the right to silence justifiably deserves
continued protection.
The essay consists of four sections, inclusive of the introductory and conclusion section. The
second part examines the origin, development, justification and nature of the right to silence
and provides the necessary background for examining the discussions of the value of the right
to justice systems. The third section considers the opinions for and against the right to
silence.
2. The Origin, Justification and the Nature of the Right to Silence.
There is significant debate as to the specifics in the historical origin of the right to silence. 2
The dictum of Lord Mustill that attests to the existence of a body of protection, which 'differ
in nature and origin' though commonly grouped under the broad coverage of the right to
silence, easily accounts for this disparity.3 Commentators on its origin however agree that the
rules relating to modern day privileges making up the right to silence are of common law
2

Steve Greer, 'The Right to Silence: A Review of the Current Debate (1990)', 53 Modern Law Review Law
709-730,710; Commission of India; 'Report on Article 20(3) of the Constitution of India and the Right to Silence
(May 2002) < http://lawcommissionofindia.nic.in/reports/180rpt.pdf > accessed 10 May, 2016.
3
R. v. Director of Serious Fraud Office, ex parte Smith [1992] 3 Weekly Law Reports 66. For example, the right
not to incriminate one-self is said to have arose out of the abolition of the Star Chamber in England in the 17th
century. Another school of thought on the origin of the right to silence, argue that the right to silence predates
the Star Chamber of the 17th century, where the right to be silent before one's accusers emerged as a basic
democratic right even before it received judicial consideration. Yet another school of thought argues that the
right did not originate from England but rather from roman canon law in the early seventeenth century whereas
it became a feature under English Common law in the late seventeenth century at the earliest See generally John
H. Wigmore, A Treatise on Evidence (The McNaughton Revision 1960) Vol. VIII, J. Wood and A. Crawford,
The Right of Silence: The case for retention (The Civil Liberties Trust 1989) 5; Steve Greer, 'The Right to
Silence: A Review of the Current Debate (1990)', 53 Modern Law Review Law 709-730,710; Gregory O'Riely,
'England Limits the Right to Silence and Moves towards an Inquisitorial System of Justice' (1994) 85 Journal of
Criminal Law and Criminology 401-452, 407. See also the cases of Environment Protection Authority v Caltex
Refining Co. Pty. limited (1993) 178 CLR 477 (Australia)

origin; are linked to the rival systems of criminal procedure of the common law courts and
the ecclesiastical courts of England that maintained distinct spheres of jurisdiction as early as
the thirteenth century.4 By the close of the nineteenth century under English law a suspect
had the right to protect himself from self-incrimination by being quiet during police
interrogation5 and choosing not to testify during trial6
Contemporary global settings view the right to silence as part of the international standard of
justice.7

Art 14(3)(g), International Convention on Civil and Political Right (ICCPR)

provides that 'an accused has a right not to be compelled to testify against himself or to
confess guilt'.8 This provision together with art 14(2) of the same Convention, providing for a
presumption of innocence until proven guilty according to law create state obligations to
respect a cluster of procedural rules, essentially serving the same purpose as an express
mention of the right to silence. More recent international documents make explicit reference
to the right to silence. The rules of both criminal tribunals of Former Yugoslavia, 9Rwanda10 as
4

The system of criminal procedure practiced in both courts differed with regards to the mode of investigating
and obtaining evidence for adjudication in that while the common law courts favoured independent evidence,
the ecclesiastical courts which had ties to ancient Rome employed the use of confessions as a key component of
its criminal procedure. One of the earliest immunities that developed under the right to silence is traced to the
latin maxim nemo tenetur prodere seipsum attributed to Saint John Chrysostom which was used as a defence
under ius commune, (common law of roman and English origin) practiced by the ecclesial courts. The
procedures of the Ecclesiastic court were judges of the Ecclesiastic courts had the power to interrogate an
accused under oath to before it became entrenched in English common law by statute of 1940. The cluster of
principles that form present day right to silence developed at different phases See ) M.R.T. McNair, The Early
Development of the Privilege against Self-Incrimination [I990] 1OJLS 66; John H. Langbein ,'The privilege
against self incrimination: its origin and development' in Hemholz et al (eds), The Privilege against SelfIncrimination: Its Origins and Development (University of Chicago Press 1997)
5
This principle developed with the establishment of the professional police force in England in 1829 as a result
of the suspicions ways confessions were obtained. In Ibrahim v R (1914) AC 599, the English court established
that an admission or confession would only be admitted if the prosecution established that it was made pursuant
to a free choice to speak or remain silent.
6
After the abolition of the Ecclesiastic courts and the procedure of trial by oath, the principle of protection
from self incrimination was not fully established as a protection for criminal defendants in common law until
when the practice of being represented by lawyers and the emergence of the law of evidence occurred in English
justice system.
7
Murray v UK (1996) 22 E.H.R.R. 29 (ECHR). See also Civil Liberties Organisation and Others v Nigeria
(2001) 75 AHRLR.
8
Although not specifically mentioned in the European Convention on Human and People's Right, the Grand
Chamber in the European Court on Human Rights' (ECHR) case of Murray v UK (ibid) clearly stated that the
right to remain silent is recognised under the convention.
9
Art 21 of the ICCY International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and
Evidence, last amended 12 April 2001. <www.un.org/icty/basic.htm> accessed 10 May, 2016.
10
Rule 42, International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence (adopted on 29 June
1995 and amended thereafter, consolidated text dated 31 May 2000) < www.ictr.org> accessed 10 May, 2016.

well as the International Criminal Court employing different languages, provide for the right
to silence. Skinnder and Gordons rightly view the unequivocal expression as indications of an
affirmation that any procedural measures, which may have the effect of pressuring suspects
and defendants into speaking against their will, contravene global human rights principles.11
Although not expressly mentioned in the European Convention on Human and Peoples' Right
(ECHPR), the right to silence has been held to lie at the heart of the notion of fair procedure
under art.6.12 Similarly, art 7(1)(b) of the African Charter on Human and Peoples Right
(ACHPR)13 and

Principles And Guidelines On The Right To A Fair Trial And Legal

Assistance14 In Africa covers the recognition of the right to silence.

Diverse jurisdictions through national legislations and reflective of the existence of the two
major legal traditions, have also either bestowed the status of a fundamental human right 15 or
provided some degree of statutory recognition to the right of silence. 16 In Nigeria, the
11

Eileen Skinnider and Frances Gordon, The Right To Silence International Norms And Domestic Realities
(Sino Canadian International Conference on the Ratification and Implementation of Human Rights Covenants
Beijing, October 2001) 5 <http://icclr.law.ubc.ca/sites/icclr.law.ubc.ca/files/publications/pdfs/Paper1_0.PDF>
accessed 5 May, 2016
12
Murray v UK (1996) 22 E.H.R.R. 29 (ECHR). The protection from self-incrimination and the right to silence
was introduced into the criminal jurisprudence of the European Court after what Andrew Ashworth describes as
'a brief and Delphic comment' of the court in the case of Funke and France (1993) 256 Eur. Ct. H.R. (ser. A).
The defendant's application to the Court alleged that his right to a fair trial had been breached because he was
being compelled to provide evidence that might incriminate him. See Andrew Ashworth, 'Self-incrimination in
European Human Rights LawA Pregnant Pragmatism? 2008 Cardozo Law Review 751.
13
Civil Liberties Organisation and Others v Nigeria (2001) AHRLR 75 (ACHPR 2001).
14
Par. N(6)(d) of the Principles And Guidelines On The Right To A Fair Trial And Legal Assistance In Africa,
made pursuant to art. 7 of the ACHPR provides copiously for the right to silence when it states thus:
'6).....
a)
b)
d) The accused has the right not to be compelled to testify against him or herself or to confess
guilt.
(i) Any confession or other evidence obtained by any form of coercion or force may not be
admitted as evidence or considered as probative of any fact at trial or in sentencing.........
(ii) Silence by the accused may not be used as evidence to prove guilt and no adverse consequences may be
drawn from the exercise of the right to remain silent. '
15
In Ransome-Kuti & ors. v. Attor. Gen. Federation & ors((1985) NWLR (Pt.6) 211) ,the apex court in defining
discussing the effect of fundamental rights succinctly stated that;
" It is a right which stands above the ordinary laws of the land and which in fact is antecedent to
political society itself. It is a primary condition to a civilized society existence and what has been
done by our Constitution...is to have these rights enshrined in the Constitution so that the rights
could be "immutable" to the extent of the "non-immutability" of the Constitution itself.
16
The German Criminal Procedure Code (StrafprozessordnungStPO) for example recognises the right by
providing that 'the suspect shall be informed what offence he is suspected of and which provisions of the

Constitution provides that any person who is arrested shall have a right to remain silent or
avoid answering questions17 and cannot be compelled to give evidence at his trial.18
The modern rationale for the existence of the right stems from the historical justification that
the right developed to curtail the ability of the state to compromise individual liberty, privacy
and autonomy. The right to silence is a procedural protection for individuals who are
vulnerable in comparison against the powers of the state represented by the police. 19 Since
the state has access to overwhelming powers to ensure that the citizen conform, the right
'contributes to a fair state-individual balance by requiring the government to leave the
individual alone until good cause is shown for disturbing him.' 20 Therefore, the right to
silence ensures that suspect, although detained under the States superior power, maintains
the right to choose whether to answer questions, without fear of sanction.
Closely related to the 'fair state-individual balance' justification is the concept of the
presumption of innocence, which is an essential element of the adversarial criminal justice
system of common law traditions. This presumption hinges on the belief of individuals as
decent and law-abiding members of the community until proven otherwise. 21 The existence of
the presumption of innocence places the burden on law enforcement officers and prosecutors
to prove guilt cases beyond reasonable doubt through witnesses and extrinsic evidence. 22 An

criminal law can be applied. He shall be advised that he is free, according to the law, to respond to the
accusation or not to make a statement on the matter'(emphasis mine). See
recognizes a suspects right to remain silent
17
Section 35(2) Constitution of the Federal Republic of Nigeria, Cap C20 LFN, 2004
18
Section 36(11) Constitution of the Federal Republic of Nigeria, Cap C20 LFN, 2004
19
Barbara Ann Hocking and Laura Leigh Manville, What of the Right to Silence: Still Supporting the
Presumption of Innocence, or a Growing Legal Fiction? (2001) 1 Macquarie Law Journal 63,65
20
Wigmore on Evidence. See also ENVIRONMENT PROTECTION AUTHORITY v CALTEX REFINING CO.
PTY. LIMITED (1993) 178 CLR 477 (Australia); MURPHY v. WATERFRONT COMM'N, (1964)
21
R v. Oakes (1986) 50 C.R. (3rd) 1(S.C.C.) Canada.
22
Woolmington vs. DPP, (1935) AC 462,481(per Viscount Sankey). In Adekunle v State (2006) LPELR107(SC) the Apex Court in Nigeria affirmed that the burden of proving guilt of the accused beyond reasonable
doubt is on the prosecution. This is in line with the principle captured in section 36(5) of the 1999 constitution
that a suspect is presumed innocent until proven guilty.

accused person must thus be free to remain silent in the face of his accusers. The Nigerian
apex court in Adekunle v. State, affirmed that;
'... an accused person, is presumed innocent, until he is proved guilty. There is
therefore, no question of his proving his innocence. ...The duty is on the
prosecution, to prove the charge against him... beyond reasonable doubt.' 23
The recognition of the right as an international human right that protects personal freedom,
privacy and human dignity, further refines philosophy behind its existence in contemporary
global society.

Although originally a key element only in the adversarial system, the

recognition under international instruments has provided 'universalisation' and subsequent

introduction of core aspects of the right to silence to the inquisitorial criminal justice systems
of civil law traditions during the late 20th century.
Contemporary right to silence vary in scope across jurisdictions. Several reasons account for
the divergence in the scope of protection. First, countries operating the adversarial system-a
common feature of the common law traditions- in reality provide better protection of this
right than their counterparts operating under the civil law inquisitorial system due to the
method of collecting and presenting evidence. Ingraham notes accordingly that;
In general, nations where criminal procedures can be described as
"accusatorial" in most of their features go very far in protecting and fostering
this right. Criminal justice systems whose procedures are describable for the
most part as "inquisitorial" are more open to the idea that persons accused of
crimes should be encouraged to offer evidence of their innocence to the police
and cooperate with them in clarifying matters.... They see nothing wrong with
23

(2006) LPELR-107(SC). See also Igbale v State See also (2006) 6 NWLR (Pt.975) 100, 39 per Ogugbabu
JSC

allowing the jury to infer whatever they like from a defendant's refusal to offer
a defense"24
In its original common law principle form, the right to silence is two pronged. 25 The first arm
of the right is that a suspect generally has no legal obligation to talk to the police or to give
evidence in court. Secondly, the suspect should not suffer any disadvantage at trial for the
defendant's refusal to cooperate with the police or testify. This means that should be no
invitation to conclude that a defendant is guilty merely because he has refused to respond to
allegations, particularly from the police, or has refused to testify in court in his own
defence.'26
The contemporary right to silence, even in jurisdictions under common law is presently not
as clear-cut and concise. This is due to the corrosive pattern discernible from statutory
provisions,27 case law28 and commentaries against the right to silence. In Nigeria, the extant
Evidence Act29 2011 repeals section 160 (1) of the previous Act which provided that failure
of any person charged with an offence to give evidence shall not be made subject of any
comment by the prosecution. The implication of this is the possibility of drawing adverse
inferences.30 International case law on the subject appears to be in line with limiting the scope
of the right also. In Murray's case, the ECHR found that drawing of adverse inferences did

24

Barton L. Ingraham, The Right of Silence, the Presumption of Innocence, the Burden of Proof, and a Modest
Proposal: A Reply to O'Reilly, (1996) 86 Journal of Criminal Law and Criminology559, 564
25
Barbara Ann Hocking and Laura Leigh Manville, What of the Right to Silence: Still Supporting the
Presumption of Innocence, or a Growing Legal Fiction? (2001) 1 Macquarie Law Journal 63
26
Steven Greer, 'The Right to Silence, a Review of the Current Debate' (1990) 53 Modern Law Review 709,
710
27
For example, the section 34 of the English Criminal Justice and Public Order Act which allows the court in
certain situations to draw inferences from the silence of an accused during investigation and trial. A similar
corrosion of the right to silence is created by the provision of s 34(L) of the Australian Security Intelligence
(AISO) Act 1979 which effectively limits the right to silence for suspected terrorists.
28
29

Evidence Act, 2011

See the s34 of the Criminal Justice and Public Order Act and s 34L(2) Australian Security Intelligence (AISO)
Act 1979. In Australia, see Woon v. R (1964) 109 CLR 529, the Australian court held that an inference of
consciousness of guilt may be drawn from conduct or demeanour (which may include silence) when taken in
combination with other evidence.
30

not violate the right to silence.31 Thus, there is arguably a near convergence of the civil and
common law legal traditions on the right to silence through normative shifts evidenced by
statutory and judicial modification. Based on these modifications, scholars opine that the
right to silence is not an absolute right but rather, a safeguard that might be removed provided
other appropriate safeguards for accused persons were introduced to compensate for the
potential risk of unjust convictions.32 This position of the right to silence not being an
absolute right is difficult to sustain especially in jurisdictions like Nigeria where the right is
entrenched explicitly in the Constitution without any form of curtailment. In Rabe v. State 33
the court affirmed that
"... the Constitution, the fons et origo, is supreme, paramount and overshadows all
other enactment promulgated by the legislature, be it national or state
legislature.... all other laws must not only be consistent with its provisions, but
derive their potency and legitimacy from it"
At its most basic level in countries operating under common law traditions presently, the right
to silence provides that a person who believes that he or she is suspected of an offence is
entitled to remain silent. The silence either at investigation or during trial does not ordinarily
amount to an admission if it is occasioned by the conscious exercise of a known right to
remain silent, whether the suspect has been told of this right or not.34
31

This position is contrary to earlier decisions of the same court in the cases of Funke v France(1993) 256 Eur.
Ct. H.R. (ser. A) and Saunders v. United Kingdom (1996)VI Eur. Ct. H.R. 2044 that were to the effect of the
recognition of the absolute nature of protection from self-incrimination an immunity linked to the right to
silence. The position of the ECHR on the right to silence not being absolute hinges on a condition that a prima
facie case is made against the accused and the procedural safeguards are followed.
32
See Murray v. UK where the court stated that In Condron v UK (2001) 31 E.H.R.R. 1, the Strasbourg Court
recognized that section 34 and 35 of the Criminal Justice and Public Order Act (CJPOA)aims to strike an
appropriate balance between the right to silence and the drawing of adverse inferences. In Nigeria, the safeguard
for a curtailed right is arguably contained in section 29 of the Evidence Act which provides that a confession
will be inadmissible unless the prosecution can prove beyond reasonable doubt that the confession was not
obtained by oppression.
33
(2013) LPELR-20163(CA)
34
The position in several common law jurisdiction and in Europe is that inferences can be drawn where the
accused chooses to remain silent during trial in the face of a prima facie evidence presented by the prosecution
which calls for an explanation by the accused.

3. Is the right to silence inhibiting or enhancing the wheels of justice?

Debates that portray the difference of opinions on the role of the right to silence in the
criminal justice systems have arisen intermittently over the years, especially in jurisdictions
with connections to the former British Empire.
Advocates for the abolition of the right argue that criminal justice systems will do better in
the absence of the right to silence. They indicate that its subsistence is not in the interest of
the criminal justice systems because it creates an unreasonable advantage for criminals. 35 For
the police especially, the prompting for the change hinges on the view that the right hinders
criminal investigations.36 The police drop a large number of criminal charges against suspects
and several cases are lost at trial due to lack of sufficient evidence, which would be
obtainable in the absence of the right. The implication of the assertions by this school of
thought is that the guilty frequently obscure the search for truth and thwart the course of
justice by simply saying nothing.37 Bentham as one of the fore runners of this school of
thought opined that it was a rule both unnecessary and unwise. For him, (i)nnocence never
takes advantage of it. Innocence claims the right of speaking, as guilt invokes the privilege of
silence'. In the absence of the right to silence, routers for its abolition argue prosecution and
conviction of criminals would be on the increase, resulting in crime reduction.
The arguments canvassed by adversaries to the existence of the right presents several
weaknesses. The main flaw of the overall assertion of pro-abolitionists is the absence of
systematic empirical evidence to support the claim that the right to silence gives significant

35

Gregory O'Reily, 'England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice',
(1994) 85 The Journal of Criminal Law and Criminology 402-452, 403
36
Barbara Ann Hocking And Laura Leigh Manville, 'What Of The Right To Silence: Still Supporting The
Presumption Of Innocence, Or A Growing Legal Fiction? (2001) 1 Macquarie Law Journal (2001)63,70
37
ibid

unfair advantage to criminals. Several scholars38 and commissioned inquiries39 through

studies conducted in various jurisdictions affirm that 'empirical data... does not support the
argument that the right is widely exploited by guilty suspects, as distinct from innocent ones,
or .... that it impedes the prosecution or conviction of offenders'. 40 O'Riely after a meticulous
analysis of the various studies conducted both in England and Singapore, asserts that silence
is not a serious impediment to police solving crimes, neither does it reduce the number of
cases that are lost due to the observation of these rights the accused.41
The present day realities of global insecurity presenting as terrorism and organised crimes has
arguably put a strain on assertions of the need to continue to provide protection for individual
rights over state powers. Under the guise of the imperatives of national security, several
jurisdictions practicing the adversarial justice system have introduced modifications to the
exercise of the right as part of a criminal justice reform aimed at getting tough on crime. 42
This move continues to be criticised by advocates of the right to silence, especially in the face
of evidence that such modification has had negligible impact. 43 The United Kingdom Home
Office confirms that since the enactment of the CJOPA,
'...there have not been changes in the proportions of suspects charged, the level
of guilty pleas or the proportion of defendants who are convicted, which can be
related to the introduction of the provisions.'44
38

Steven Greer, 'The Right to Silence, a Review of the Current Debate' (1990) 53 Modern Law Review 709; J
DJackson, 'Curtailing the Right to Silence: Lessons from Northern Ireland' (1991) Crim L Rev 404; R Leng, The
Right to Silence in Police Interrogation: A Study of Some of the Issues Underlying the Debate Research, Bulletin
No. 35, HMSO, London (1994); Gregory O'Reily, 'England Limits the Right to Silence and Moves Towards an
Inquisitorial System of Justice', (1994) 85 The Journal of Criminal Law and Criminology 402-452
39
The Royal Commissionn On Criminal Justice, Report, 1993, Cmnd. 2263; Roger Leng, The Right to Silence
in Police Interrogation: A Study of Some of the Issues Underlying the Debate (1993); New South Wales Law
Reform Commission, The Right to Silence, Report No 95 (2000).
40
New South Wales Law Reform Commission, The Right to Silence, (Report No 95 2000).
41
Gregory O'Riely, 'England Limits the Right to Silence and Moves towards an Inquisitorial System of Justice'
(1994) 85 Journal of Criminal Law and Criminology 401, 431-35.
42
ibid, 432.
43
M Bagaric, 'The Diminishing Right of Silence' (1997) 19 Syd L Rev 366
44
Tom Bucke, Robert Street and David Brown, 'The Right of Silence: The Impact of the Criminal Justice and
Public Order Act 1994', Home Office Research Study 199 (2000)
71<http://www.austlii.edu.au/au/journals/UWSLawRw/2013/4.pdf> accessed 10 May, 2016.

Whereas the abolition of the right would at best be symbolic in its effect in reducing crime,
greater good is served by its retention as its existence contributes to putting a rein on the
abuse of wide state powers.
Contrary to the claim made by proponents of the right's abolition, silence can be consistent
with innocence. An innocent suspect may be silent for several reasons such as shock,
confusion, a personal trait to be generally silent or lack of understanding of the caution
administered by the police.45 In such situations, it is no longer the case that only the guilty
refrain from answering questions frankly.
The assertion that the right to silence actually facilitates the search for truth by reducing the
risk of false confessions, also counters the argument that the right obscures the search for
truth. History shows that the failure to respect the right presents an irresistible pressure on a
suspect to speak46 that can in fact lead to gross distortion of the truth in the form of false
confessions. Since false confessions lead to false convictions, there should be an appropriate
mechanism to ensure the eradication or reduction of false confessions. The existence and
respect for the right to silence serves this purpose.
In practical terms, the clamour for the abolition of the right to silence is relevant only in
circumstances where the extrinsic evidence available to law enforcement officers and
prosecutors is intermediate.47 In such situations, if there is absence of a right to silence, the
innocent suspect is disadvantaged from the harmful externality guilty defendants impose. 48
This is because due to a reduction in the odds of belief in self-exonerating accounts provided
45

Steven Greer, 'The Right to Silence, a Review of the Current Debate' (1990) 53 Modern Law Review 709; J
DJackson, 'Curtailing the Right to Silence: Lessons from Northern Ireland' (1991) Crim L Rev 404;Gregory
O'Reily, 'England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice', (1994) 85
The Journal of Criminal Law and Criminology 402-452
46
M Bagaric, .The Diminishing .Right. of Silence. (1997) 19 Syd L Rev 366, 366.
47
The right to silence has no effect where the evidence is very strong or weak. In cases of strong evidence
against the accused, both guilty and innocent defendants already face a serious prospect of conviction, which the
right to silence can neither attenuate nor increase. In cases of weak inculpating evidence, both guilty and
innocent defendants are likely to be exonerated. See
48

by both the guilty and innocent suspects, a 'blameless' defendant who cannot corroborate his
testimony by credible evidence suffers an undeserved credibility reduction and is likely to be
convicted. Seidmann and Stein using a game theoretic analysis, explain that
'(a)bsent the right to silence, guilty suspects and defendants would make false
exculpatory statements if they believed that their lies were unlikely to be
exposed. Aware of these incentives, triers of fact would rationally discount the
probative value of uncorroborated exculpatory statements at the expense of
innocent defendants who could not corroborate their true exculpatory
statements. Because the right to silence is available, innocent defendants still
tell the truth while guilty defendants may rationally exercise the right. Thus,
guilty defendants do not pool with innocent defendants by lying, and as a
result, triers of fact do not wrongfully convict innocent defendants.'
Thus, the right to silence arguably serves the innocent more than the guilty by reducing the
rate of wrongful conviction.49 In a bid to protect its citizen, the right to silence is a veritable
tool engaged to enhance the welfare of a society that considers an erroneous conviction of an
innocent individual more harmful than exonerating a guilty criminal. Applying a
consequentializing strategy,50 the value protected by the right to silence accordingly achieves
lexical priority in the ranking of outcomes that the criminal justice system achieves.51
49

Daniel J. Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the
Fifth Amendment Privilege, (2000) 114 HARV. L. REV. 430, 433
50
A consequentializing strategy provides for the ranking of outcomes in comparison with available alternatives
evaluative ordering of outcomes such that an act is permissible if and only if no available alternative outcome
ranks higher than its outcome on that ordering. Since the innocent suspect cannot be adequately protected by
any other means in the absence of the right to silence, then the existence of the right ranks higher in outcome.
See generally, Douglas W. Portmore, 'Consequentializing Moral Theories', (2007) 88 PAC. PHIL. QUART. 39;
Alex Stein, The Right to Silence Helps the Innocent: A Response to Critics, (2008) 30 Cardozo Law Review
51
Supporters of the right to silence, such Greer argue that the right creates certain moral and political values that
rank above societal interests in the self-incriminating information that could help it to convict more criminals
than it presently does. The flaw in this line of argument rests on the question "in the face of conflicting legally
protected rights of individuals, who is responsible for the ranking?" Using the same line of argument as
proffered by proponents of this right, a prospective victim of abuse can argue that the right to be protected
against crime properly creates moral and political values, which makes a demand for the abolition of the right to
silence valid. Stien does not agree entirely with this rationale posited for the existence and continuation of the
right to silence. He suggests employing Portmore's theory of maximising consequentialism, supporters may

Conclusion
From an examination of the international and regional human rights instruments, as well as
the implementation practice under common and civil law traditions, the right to silence
clearly forms an important part of the criminal justice procedure, which links other
fundamental principles together. The statement of the ECHR in Murray's case regarding the
right of silence being the heart of the art. 6 right to fair trial, speaks volumes of the
importance of the right. Although compared to original common law principle protected by
constitutional provisions in several jurisdictions, contemporary right to silence has already
been significantly weakened, its existence still bolsters faith in the justice system
Conclusive empirical evidence does not support assertions that the right is an unnecessary
clog in the wheel of justice based on the 'Benthamic' logic. Rather, available studies on the
impact of the right to silence in various jurisdictions and reasoning such as the those
contained in Seidmann and Stien games theory analysis suggest the irresistible conclusion
that the right to silence is not an unnecessary clog in the criminal justice system

posit instead that the values protected by the right to silence should instead be given a lexical priority in the
ranking of outcomes that the criminal justice system achieves. See Alex Stein, The Right to Silence Helps the
Innocent: A Response to Critics, (2008) 30 Cardozo Law Review; Steven Greer, 'The Right to Silence, a
Review of the Current Debate' (1990) 53 Modern Law Review 709; Douglas W. Portmore, 'Consequentializing
Moral Theories', (2007) 88 PAC. PHIL. QUART. 39.