Like in US?
Do they have 5th amendment?
Does Indonesia have 5th amendment kind of thing?
Do I have a right to remain silent? And if I have, should I?
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1 Answer
The US Fifth Amendment right to silence has multiple consequences, one being that the police cannot beat a confession out of you, you cannot be compelled to testify against yourself, and if you refuse to testify, your refusal cannot be considered as evidence of your guilt. There is a related right (the Miranda right), that when arrested, police must inform you of your right to silence and an attorney. On the topic of silence being held against you, that aspect of 5th Amendment rights does not exist in England and Wales, but it remains in Scotland. In fact, in the US there is a kind of "exception" to the rule that silence cannot be held against you, in the form of "adoptive admissions", where your failure to deny an accusation can be introduced as evidence against you in trial (you can overcome this exception by explicitly invoking your right to silence). The right to silence is generally recognized in common law jurisdictions, but is not historically part of inquisitorial systems (but has spread to such systems in the modern era). Even within common law jurisdictions, the foundation of this right varies. It is encoded in the US Constitution, but is not a constitutional right in Australia. Under French law, a suspect being questioned by a judge during an investigation must be informed of his right to silence, and at trial he can be compelled to testify, but he is free to say whatever he wants, including telling lies.
As for Indonesia, Ch. VI of the Law of Criminal Procedure covers any supposed right to silence: Art 66 says that "A suspect or an accused shall not bear the burden of proof". However, Article 175 says "If the accused declines to answer or refuses to answer a question addressed to him, the head judge at trial shall suggest that he answer and thereafter the examination shall be continued". See also this article by Amnesty International which concludes that there is no formal right to silence in Indonesian law, and there is an obligation to answer questions.
answered Mar 28, 2019 at 15:07
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Even with the right to silence clearly established in US law, police can and do still "beat confessions out of" suspects, although this is illegal. If it is proved that this has happened, the confession and evidence derived from it will be thrown out, and the police may be subject to civil suit (sec 1983 perhaps) and/or criminal charges. But if the police deny such claims, they are often believed. Many jurisdictions now require recording of questioning, by audio or video. Commented Mar 28, 2019 at 18:04
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1The US "Miranda" warning is not really a separate right, but a way to help prevent violations of the right to avoid self-incrimination, and the right to a lawyer. Commented Mar 28, 2019 at 18:06
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Say a person rape a girl. Someone ask him, did you do it? He says, I prefer to remain silent. Why don't you just say no if you don't do it? Can a jury reasonably conclude that this guy did it? He could have just say not?– user4234Commented Apr 1, 2019 at 20:08
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In Indonesia, a panel of judges reaches the conclusion. In the US, the jury is instructed to not hold silence against a defendant. It is unlikely that a defendant would be asked "did you rape this person?", instead they would get a series of questions that have the cumulative effect of saying "yes". Defendants do lie, but that is against the law, and we operate on the theoretical assumption that people obey the law.– user6726Commented Apr 1, 2019 at 20:53
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But if defendants lie then he get more punishment on top of the current ones right? In Indonesia, lying seems like a good idea. Judges do not seem to care that the testimony is true or not. All they care is that they make decisions based on evidences presented in court.– user4234Commented Apr 4, 2019 at 8:38