Academic journal article Journal of Criminal Law and Criminology

Comment on Ingraham's "Moral Duty" to Talk and the Right to Silence

Academic journal article Journal of Criminal Law and Criminology

Comment on Ingraham's "Moral Duty" to Talk and the Right to Silence

Article excerpt

I. Introduction

Professor Barton L. Ingraham opened an illuminating debate about fundamental legal principles usually assumed to be at the bedrock of American democracy in his reply(1) to my article in this journal. My article described how 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.(2) Proponents of this new law argued that it would "dissuade offenders from thwarting prosecution simply by saying nothing," force suspects to confess, increase convictions, and thereby reduce crime.(3) Opponents countered that even the innocent may "have valid reasons for remaining silent, and that the proposal would not reduce crime, but rather would increase the likelihood of coerced or false confessions and erroneous convictions."(4) Opponents also argued that the new limits to the right would undermine the presumption of innocence and erode England's accusatorial system of justice."(5)

Along with others, I 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 which 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 doing so, England has stepped back toward an inquisitorial system, a retreat which will affect not only the criminal justice system but also the character of the relationship between the citizen and the state.

Professor Ingraham disagreed, and took issue with the key elements of the accusatory system of justice -- the presumption of innocence, the right to silence, and the burden and standard of proof. For Professor Ingraham, it is "no longer clear" that the hazard of criminal sanction is still sufficiently severe to require the protections of the accusatorial system.(6) He seeks to ensure that suspects and defendants honor a proposed moral duty to talk.(7) Professor Ingraham's reply echoes themes from his previous writings. He has argued that the accusatorial criminal justice system is a "circus of illusions and deception"(8) and a "perfect tool for keeping facts out of sight."(9) He has also argued that "American lawyers" perpetuate "myths" about the system, namely that judicial independence protects the citizen against overreaching government, that the adversary system utilizes neutral magistrates in a contest from which the truth emerges,(10) and that official power must be checked to assure liberty."(11) He has referred to the American distrust of leaving "too much to the discretion of officials" as "American parochialism,"(12) and dismissed distinctions between legal systems -- including those of totalitarian regimes -- regarding the value they place on the protection of the innocent from conviction.(13) The stark contrast between Professor Ingraham's views and my own may help to clarify why American lawyers believe and practice as we do, and why we have not only a tradition supporting the right to silence, but a commitment to it as a primary value in our jurisprudence.

While English proponents of limiting the right to silence offered in trade the dubious promise of reduced crime, Professor Ingraham offered only a moral justification. He made light of any competing concerns, such as the risk that more innocent people will be convicted of crimes, or that the change may increase state power at the expense of individual liberty. In advocating a duty to talk, Professor Ingraham minimized its significance, contending that I offered "patently untrue" or "unverified statements" about the significance of the new law.(14) While he questioned the value of the accusatorial system and suggested that it should be diminished, he asserted the new law does not move the English justice system from the accusatorial towards the inquisitorial model, and argued that I perpetuated "myths" about the accusatorial and inquisitorial Systems. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.