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As I understand it, the "Right to Remain Silent" errs on the side of innocence in the USA justice system. Jurors are usually supposed to rule as if the defendant testified in the manner voiced by his attorney (in opening and closing arguments) even if the defendant does not really testify.

What would be the harm in removing this right when questions are asked through his attorney with a long allowed response time? For example, suppose the judicial system (and even the police in the executive system) allowed questions like "Were you inside your house at any time on March 30, 2021?" and required an answer of either "Yes", "No", or "I don't recall" (with allowance for further supplemental information if the defendant wants to clarify further). There might be a limit of only a few such forced questions, but answers to these forced questions are all admissible in court. It's important to realize that the attorney fields these questions for the defendant, so direct police interviews still would be refused.

Of course, some defendant accused of murdering his wife on March 30 would rather not answer this question if he was truly at home with her. But, jurors would know that this incriminating evidence was forced out. So, jurors get more information in the end and can stay open to circumstances which allow the defendant to still be innocent.

I'm ultimately looking for alternative justice systems which drop the "Right to Remain Silent". There are many cases in the current system where defendants don't even try to give an alibi and this often puts a wasteful burden on investigators. Are there any such candidate justice systems in other countries? or am I missing something that makes such a system impossible?

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    Both answers so far are more focused on correcting my first paragraph (which I know is a loose and rough summary). Instead, I'm hoping for responses to my second paragraph and any problems (from history or from theory) with the approach therein. Is it just that we will trade-off a few more falsely-convicted to get more correctly-convicted, or is there a deeper problem I'm missing? – bobuhito Mar 31 at 5:08
  • a partial version of my answer was posted by mistake. In the current fuller version I try to address concerns well beyond the 1st paragraph of your question (which is not just "loose" but seriously incorrect). It is not just a question oif what will most efficiently determine the correct outcome of a trial, but an ideal of what rights an accused should have. That is a matter of legal and political philosophy. – David Siegel Mar 31 at 5:34
  • A massive spike in memory-related illnesses would be the case. You would hear "I don't recall" a lot. – Polygnome Mar 31 at 12:36
  • Isn't it true that defence attorneys are allowed to lie to the court (they aren't under oath, and their position is that it is up to the prosecutors to prove otherwise)? If so, hearing a defendant's response via an attorney would be useless. – Ray Butterworth Mar 31 at 13:16
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    Meh, the answers are underwhelming, but then so is the question. You are merely asking if such systems exist. A single word answer like "France" thus answers the question as you asked it. If you really wanted to ask how the French (or someone else who uses such a system) justify their system that would be more substantial question... but you'd probably better ask that separately. (Also the fact that you got lengthy essays from the US/Anglo-Saxon perspective tacked to the minimal answer... shows the [obvious] user biases of this site,) – Fizz Apr 1 at 14:13
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Overview

The "right to remain silent " is a feature of US law, inherited, like much of the basic structure of US law, from the British law of the late 1700s. The right is also retained in modern UK law, in a somewhat different form.

The laws of many countries that do not inherit their legal system from the English/British source do not include the right. For example, the legal system of France does not. Such a system is clearly possible and need not be an arrant tyranny. Whether such a right improves the justice and fairness of the system could be debated, but it is not essential.

Note that it is not the case that a jury must pretend that a defendant would have testified in accord with a defense lawyer's opening statement. Indeed the jury is routinely told that opening statements are not evidence and should not be regarded as such. But a US jury is instructed that it should not draw any inference or conclusion of guilt because a defendant remains silent. A defendant is entitled, by remaining silent to in effect say to the state "Prove it!" and need not offer a competing version of the events of the alleged crime. In UK law, an accused person's failure to deny the crime may be considered at the trial.

Historical origin

The right arose as a reaction against certain specific practices considered to be abusive and unfair. In several English courts, particularly the Court of the Star Chamber, the practice arose of compelling suspected persons to attend and asking them under oath if they had commuted various illegal acts. If such a suspect had in fact committed the act asked about, then the suspect had the choice of confessing to a criminal act that carried a severe penalty (often death), or committing perjury, which was both a criminal act and was widely believed to be a grave sin, possibly condemning a person's soul to hell. Or if the accused remained silent, a serious punishment for contempt of court could be imposed, and that might be treated as evidence of guilt.

These practices contributed to the abolition of the Star Chamber court in 1641. The right to silence seems to have been established in English law after the Restoration of Charles II in 1660, as described in the Wikipedia article, although it was not fully established until well into the 18th century.

Current US Practice

The right in the US not only applies during a trial for the protection of the accused.

The right permits a person being questioned by the police to refuse to answer questions, with the assurance that such refusal may not later be used in court to help convict the suspect. Many lawyers advise anyone questioned by the police who are or might be under suspicion to refuse to answer any questions at all.

The right also means that a witness who is not a defendant may not, in a criminal or civil trial, be required to answer a question if the answer might later be used to help convict that person of a crime.

There are other implications of the right, and the details are too long to go into in this answer – whole books have been written about the right and what it does and does not cover, and the reasons behind it.

The general principle may be taken to be that when the government accuses a person of crime, it must undertake to prove the crime by its own resources, not compel the accused to assist in the process.

A system in which an accused is required to respond to specific questions can be imagined. To some extent it has existed at various times and places. It need not involve torture or coerced confession, but could require an accused, during a trial, to respond to specific questions. It would violate the principle that the state must make its case without help from the accused. The value of that principle can be debated.

Other Legal systems

In the article "French Criminal Procedures—Surprising Features of a French Trial from Bloomberg, it is said that:

The “right to silence” is limited. During a trial, the judges usually turn to the defendant and ask for the defendant’s response to the evidence in the record. A refusal to respond will lead to a strong inference of guilt. A defendant is not, however, put under oath.

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  • Thank you, this is probably the answer, but I'll give it a few days. By the way, I don't agree philosophically that "the state must make its case without help from the accused". That causes the "wasteful burden" I mentioned in my question, but I know my question is now becoming philosophical with no clear answer...so it's good to just focus on what has been tried, like you are doing. – bobuhito Mar 31 at 7:14
  • @bobuhito I don't assert that principal is an ultimate good, merely that it helps explain the current US system. Many of the rights and protections are reactions to past perceived abuses. Could a better system be designed from scratch? Perhaps. This one is deeply embedded in history. – David Siegel Mar 31 at 13:03
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    A defendant already can be compelled to testify, just not "against themselves", so there is no right to silence. E.g. you could get immunity for anything revealed by that testimony (which is a discussion you see more in congressional testimony), or you could have some sort of alternate construction for every fact revealed (e.g. decryption, like here: colorado-criminal-lawyer-online.com/… ) – fectin Mar 31 at 13:46
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    It is not true that you do not have the right to remain silent in France. The European Court of Human Rights has made clear that the right to a fair trial under article 6 of the European Convention on Human Rights includes the right to remain silent and France is bound by this ruling. – Jack Aidley Mar 31 at 15:54
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    The current British right to silence is much more limited than the US one, as "it may harm your defence if you fail to mention, when questioned, something which you later rely on in court". This significant change was made in response to IRA terrorism. – Muzer Mar 31 at 16:56
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The reason that the right to remain silent is important can best be demonstrated in the opening set up and later trial that forms the plot of "My Cousin Vinny". In the film, the two defendants are on a Road Trip from Brooklyn, New York City, NY to L.A., California ahead of their Freshman school year. Along their way, the stop for fuel and food at a mom and pop gas station in rural Alabama, where while laden down with food, Ralph Machio's character puts a $0.25 can of tuna in his jacket pocket, but forgets this when he is at the check out and only realizes once the pair are back on the road. Moments after Machio realizes they stole the tuna, a cop car appears behind them, pulls them over, and arrests them.

The audience but not the characters learn that after the pair left the store, the clerk was discovered shot dead in a robbery (and witnesses describe seeing a get away vehicle that looks like the pair we are following). All of this leads to the two characters assuming that rural U.S. south is a no nonsense place in terms of the law (A Stereotype of Law Enforcement in the Deep South) and are willing to go with scary police tactics because the clerk caught the accidental theft and called it in. All while the police are acting quite realistically considering the nature of the crime, their own biases against New Yorkers, and the fact that the Sheriff was seen consoling the clerks widow (implying the sheriff had a non-professional relationship with the clerk and his wife and now had to investigate the death of a friend.).

When the sheriff get's Machio's character into interogation, this disconnect comes to a head in a comedy of errors (you know... a dark one... the pair are facing the electric chair for a murder they didn't commit). Machio, in a play to co-operate for the crime he thinks he's being arrested for, offers to come clean and sign a confession. He tells the Sheriff that he did put the can of tuna into his pocket, his buddy wasn't aware of this until after they drove off in the car. Sheriff asks if the clerk knew about this and that's what caused it. Machio said the clerk didn't know, and the Sheriff asks to the effect "At what point did you shoot the clerk?"

Machio is taken aback but this sudden question and responds in shock and confusion "I... shot the clerk?"

The sheriff repeats the question again, to which a very confused Machio responds "I shot the clerk?!"

At this point the sheriff writes down a quick note and excuses himself to make a phone call. It's only after the sheriff leaves the room that Machio realizes the full weight of the situation he's in and has a proper freak out.

Now, it's bad enough that the pair are considered the likely suspects in the crime and are being charged with a capital crime over a miscommunication during what was an honest attempt to admit what happened while they were at the store and be on their way. But the full extent is not revealed til much later in the movie. Everything in Machio's confession to the Sheriff was used against him: In a blink and you missed it scene during a pre-trial evidentiary hearing, the sheriff testifies that he asked if Machio shot the clerk twice and both times Machio responded with "I shot the clerk".

But in this scene, the sheriff doesn't read Machio's actual quote with any tonal or emotional context that would imply Machio's character was confused and trying to understand what was happening while uttering those words. The words themselves are not in dispute... it's the punctuation and delivery, and the sheriff is quoting Machio in such a way that Machio sounds like he is calmly stating matters of fact, when that is clearly not what he was doing from a neutral observing prospective.

It should be pointed out that the movie went to very great pains to show that no one on the opposition's side, nor the judge, had it out for the two defendants or did anything wrong (the worst possible thing that any character does at trial is the judge may have overruled an objection that he should not have and allowed a witness to testify against the defense prior to the defense having a chance to examine the testimony. That said, the defense's hastily pushed counter expert was allowed when officially she wasn't qualified... though she clearly knew what she was talking about). The witnesses and the sheriff are not maliciously against the defense... they are doing their job. A sheriff, who would frequently testify in court, would know that he should testify in a clear matter of fact voice with no emotional investment. That's his job... he's not distorting Machio's words out of spite, he's reading them in the way he is supposed to.

So why does this matter?

Well, because when you talk to the cops, they can and do use what you say against you. In fact, the rules of evidence will bar the cops from using what you say in your favor. Typically you aren't allowed to testify to something that was said by someone else. There are exceptions to this, such as statements against opposition's interest... such as statements you believe are confessions... like "I shot the clerk." The best defense to the cops turning your words against you is... to shut the hell up and get a lawyer (who should be able to best explain your position in a manner that doesn't get you in further legal trouble). The Fifth amendment protects you from being forced to help build a case against you... They have to prove their case... you don't have to prove your innocence... though you should mount some sort of defense of it.

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    In this case, shouldn't the defendant just make a statement to the police (through his attorney) that he "only stole a can of tuna and was simply surprised when hearing that the clerk was shot", thereby revoking any falsely-assumed confession heard by the police that first day? So, I don't think this example argues well for keeping the "Right to Remain Silent", but do think some similar specific example could work. – bobuhito Mar 31 at 13:40
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    Because people don't do that in real life. The "Confession" was done before the confusion was processed by anyone involved. After learning of the nature of the crime, they did call the titular lawyer, but much of the humor of the film is that Vinny only just recently passed the Bar Exam (after failing five previous times) and has never been in a court case, and his desired practice is not criminal defense (it's workplace injury). Vinny's skill is that he can quickly identify flaws in peoples stories... he sucks at everything but cross-examination. – hszmv Mar 31 at 13:59
  • To drill down on the movie scenario (obviously a matter of pretending the fictional events portrayed were real): In saying that the prosecution side--including the sheriff who testified about the "confession"--did nothing wrong, are you asserting that the sheriff did not recognize that Macchio's words "I shot the clerk" had the tone of a question? You note that a witness "should testify in a clear matter of fact voice"--but while it may not be proper to try to mimic Macchio's tone in relaying his statement, shouldn't the sheriff have stated that Macchio did not use a declarative tone? ... – nanoman Apr 1 at 8:02
  • ... Is your argument that the sheriff genuinely perceived the words as a straightforward confession, despite the fact that this is made to seem highly unreasonable to the movie viewer? Are you attributing that to the fact that the movie viewer, unlike the sheriff, knows from the start that Macchio is innocent? What I am trying to clarify is that as an officer of the court, the sheriff should not have blanket ability to ignore/omit information on a suspect's tone in a way that makes the testimony misleading. ... – nanoman Apr 1 at 8:03
  • ... Granted, it is a bad idea for suspect to make a statement that relies on tone, but the sheriff would also be in the wrong in misrepresenting how a reasonable listener would understand the suspect. So I am confused whether you are excusing the sheriff based on the need for a "matter of fact voice" (which doesn't prevent describing tone as I noted), or based on a belief that the sheriff didn't notice the tone in the first place. – nanoman Apr 1 at 8:05
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In the US, jurors are not supposed to interpret the conduct of the defendant's attorney as equivalent to testimony by a defendant, and attorney argumentation is explicitly not to be interpreted as testimony.

The right to silence is virtually universal in modern legal systems, though in regimes such as North Korea or Iran any nominal legal protections against coerced confessions are disregarded. Historically, coercion has frequently been used to obtain evidence against a defendant, including in UK law a few hundred years ago. Of course, torture is not a necessary aspect of coerced confessions, so an alternative would be summary imprisonment until a confession is rendered.

The harm is violation of the rights of the accused. Whether that causes any greater harm to society is really a question for philosophy of politics: legal systems are fairly neutral as to "good" and "bad", they simply operate on baked-in assumptions about good and bad as encoded in systems of legal rights.

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    There is a significant difference between a coerced confession, such as some authoritarian regimes use, and a legal requirement that the accused testify and respond to questions, which a number of Eureopen legal systems include. – David Siegel Mar 31 at 5:09
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    As I have heard it explained: Being detained or arrested by police is considered inherently coercive (perhaps the proper term would be coercive per se). Being held for testimony at the mercy of a court also sounds, arguably, coercive. – feetwet Apr 2 at 1:03

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