MOST of us, as law abiding citizens, have never been arrested. But many of us know that there is a right to remain silent.
In Hong Kong, the police give the following caution when arresting suspects: 'You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.' For many years, the British police have warned suspects with a similar caution: 'You do not have to say anything unless you wish to do so but what you say may be given in evidence.' Recently, however, the rules have been changed in Britain. The new warning is: 'You do not have to say anything, but if you do not mention now something which you later use in your defence, the court may decide that your failure to do so now strengthens the case against you. A record will be made of anything you say and it may be given in evidence if you are brought to trial.' I find the new British caution confusing. Is there still a right to silence? Further, would it coerce suspects into forfeiting whatever right to silence there might still be? From the plain reading of the new caution, it would seem that if an arrested person exercises his or her right to remain silent, he or she may suffer for it at the trial.
For example, could it cost the suspect the opportunity to offer an alibi in defence since the judge and the jury could discount that defence because the information was not originally offered at the time of arrest? It would seem that the new British caution defies not only the fundamental safeguards against self-incrimination, but worse still, it defies the entire criminal justice tradition as we know it. That tradition requires the prosecution to prove the case against the defendant beyond reasonable doubt. The defendant is presumed to be innocent until proven guilty in a court of law.
In the United States, the caution is a very long one. It is often referred to as the Miranda warnings after a famous confession case in 1965 when the Supreme Court reversed a California state murder conviction because the prosecution and the trial judge commented adversely on the defendant for not testifying.
The appellate court ruled that such comments were wrong because they have the effect of putting a penalty on what is the defendant's constitutional right to remain silent.
Today, American police are required to inform all suspects: 'You have the right to remain silent and refuse to answer questions. Anything you do say may 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 any questioning now or in the future. If you cannot afford an attorney, one will be provided for you without cost. If you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one.' IF you were facing an arrest, which warning of the three would be most informative to you? It seems to me that the American warning is the clearest and fairest because it spells out the rights of the individual when arrested by the police as a suspect for a crime.
