The right to remain silence (to not testify)

The Miranda Warning

We have all heard and witnessed the famous Miranda Warning a thousand times in movies and on TV: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”

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Where do the rights associated with Miranda Warning come from?

In 1966, the outcome of the Ernesto Miranda trial against the State of Arizona required and established that suspects must be informed of their specific legal rights when they are arrested.

Two years earlier (1964) in another famous trial (Escobedo v. State of Illinois) the Supreme Court ruled that a suspect has the right to have a lawyer present during police questioning or to consult with a lawyer before being questioned by the police if the police try to use the answers against the suspect in a trial, or if the person being questioned is being held and questioned against his will.

However, the Miranda Warning has a third component: The right to remain silent and non-self-incrimination.

The Murray Doctrine

Article 6 of the European Convention on Human Rights does not expressly provide for the right to silence. However, the defendant “Murray” in a proceeding against the British Government claimed that this right was implicitly covered by article 6. And the European Court of Human Rights agreed with him.

The European Court of Human Rights (ECHR) specified that, although not specifically mentioned in the Convention, inherent in the notion of a fair trial in Article 6 of the European Convention on Human Rights (ECHR) is the right to remain silent and not to testify against oneself.

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Is it legal to record a conversation? Under what circumstances?

The act of recording a conversation does not escape these new faculties. Whether as a simple record, or as an eventual means of proof, the truth is that even today it is unclear as to whether it is lawful to record a conversation or whether it could lead to negative consequences.

The impossibility of applying the Murray Doctrine in Spain

The great problem with the application of the Murray doctrine in Spain is the order in which the interrogation is practiced in the oral trial. First, the defendant or defendants are questioned. And only after that, is the questioning of the witnesses

Why? The defendant must make a choice: remain silent or speak. If such a decision precedes the taking of evidence (as provided for in the Criminal Procedure Act), it is hardly a right of the accused, as he or she makes the decision blindly. Or to put it another way: The minimum requirement is that the defendant first hears the evidence, and only then decides to speak or remain silent. But if the criminal process forces him to make that decision first, it significantly mutilates the fullness of that right. Formally he has the right, yes, but he cannot exercise it fully. And we are talking about rights that are conferred by (1) the European Convention on Human Rights (2) the Spanish Constitution and (3) Article 118 of the Criminal Procedure Law and that are universally recognized.

Every reform of the Criminal Procedure Law in recent years has been aimed at changing this point. But no reform has ended up changing this essential aspect recognized in the universal criminal order.

The Criminal Procedure Law in Spain configures the order of intervention in the Plenary in such a way that it curtails and undermines the right to remain silent and the right to non-self-incrimination.

Some might argue that’s what their right to the last word is for. But whoever argues in that sense is either mistaken and unaware of the extent of the effects of the right tot he last word has for a court or intends to mislead anyone who reads or listens to him.

Interrogation practice in Spanish Criminal Procedure Law

This is the regulation of the order of intervention in the Plenary of a Criminal Process in Spain (extract).

• Article 696

If the defendant does not confess to the crime attributed to him in the qualification, or his defence counsel considers it necessary to continue the trial, the trial shall proceed.

• Article 698

The trial will also be continued when the defendant does not wish to answer the questions put to him by the Court President.(…)

• Article 699

(…) This will be followed by the taking of evidence and the examination of witnesses, starting with that offered by the Prosecution Service, continuing with that proposed by the other actors, and finally with that of the defendants.

The evidence of each party shall be taken in the order in which it is proposed in the relevant pleading. Witnesses will also be examined in the order in which their names appear on the lists.

The Court President, however, may alter this order at the request of a party, and even on his own initiative, when he deems it advisable for the further clarification of the facts or for the surest discovery of the truth.

Regulation of the right to silence and non-self-incrimination in Spain

Article 118 of the Code of Criminal Procedure

Any person to whom a punishable act is attributed may exercise the right of defence, intervening in the proceedings, as soon as he or she is informed of its existence, has been arrested or subjected to any other precautionary measure, or his prosecution has been agreed to, to which end he or she shall be informed, without undue delay, of the following rights:

(…)

(g) The right to remain silent and not to give evidence if he or she does not wish to do so, and not to answer any or all of the questions put to him/her.

(h) The right not to testify against oneself and not to confess guilt.

The right to Silence is NOT an absolute right: It can have consequences for the defendant

The ECHR (European Court of Human Rights) has recognized the right to silence, but at the same time, it has clarified that there may be consequences for taking advantage of this right. The right to silence is not an absolute right. That’s the Murray doctrine. And that is precisely the consequence of the fact that in Spain it is a right that cannot be applied in its entirety.

The silence of the defendant may be considered as an indication, but never as evidence

To what extent is the right to silence not an absolute right?

This is the real reason why the rule of criminal procedure in Spain does not allow full access to the Right to Silence or to non-self-incrimination.

The silence of an accused person or the absence of a response to the questioning of the Prosecution Service can never be considered as evidence. Although the silence of the defendant in the face of accusations that incriminate him in an undoubted manner and for which only he can provide an explanation can be considered a sign. But never to be incriminating evidence.

If the defendant decides to remain silent and not explain, he does so before the result of the evidences is known. This silence, which is the decision of the defendant, has to be decided before we know whether the evidence is conclusive or not. And this is precisely where Spanish procedural regulations violate and undermine the right of the defendant to silence and non-self-incrimination.

The right to silence in the context of the Constitutional Court (Spain)

The Ruling of the Constitutional Court (Spain) No. 26/2010 solves this in a  definitive way. “In view of the existence of certain objective evidence adduced by the prosecution (…), the omission of explanations about the behaviour prosecuted by virtue of the legitimate exercise of the right to remain silent may be used by the judge to support the conviction, unless the inference was not motivated or the motivation was unreasonable or arbitrary” (SSTC 202/2000, 24 July; 155/2002, of 22 July); certainly, such silence cannot substitute for the absence of sufficient evidence of the charge, but, like the futility of the alternative self-excusing narrative, it can have the virtuality of corroborating the guilt of the accused” (STC 155/2002, citing STC 220/1998, of 16 November).

The Murray Case as a paradigm of the consequences of the Right to Silence

Following the Ruling of the European Court of Human Rights of 8 February 1996, Murray v. United Kingdom, several statements about the absence of explanations from the defendants have been made.

Mere silence is merely the exercise of a fundamental procedural right; it is never a hint of a charge. It can have significance when silence also has a positive side: it involves refusing to offer an explanation which, if it exists, only the accused can offer.

From the Constitutional Court’s application of the procedural doctrine of the Murray case, it can be seen that the case law established by the ECHR does not allow the insufficiency of the prosecution’s evidence to be resolved by operating with the silence of the defendant – concludes the aforementioned STS 474/2016 -. Probative sufficiency other than silence is essential. That is, once there is “sufficient” evidence of the charge to undermine the presumption of innocence, the lack of explanation by the accused can be used as a further argument. Otherwise, the Constitutional Court repeatedly warns, there is a risk of reversing the principles of the burden of proof in criminal proceedings. Thus, as the supreme interpreter of our Constitution points out, the silence of the defendant may serve as corroborative evidence of his guilt, but not as a means of replacing or supplementing the insufficient evidence against him”.

The fact that the defendant does not expressly refute the charges with his statement does not provide any evidence at all. The only thing that can have more argumentative value than probative is the fact that in the face of obvious evidence, which only he could explain (e.g., the drug found in his room), that possibility declines.

Directive (European Union) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of criminal procedure.

You can access the full text of the Directive through this link

The European Union aims to harmonise a basic criminal order for all citizens of the European Union. To this end, this Directive has been approved and all the countries of the European Union have been complying with it since its publication.

In that Directive, and with regard to the right to remain silent and not to self-incrimination, it states the following.

(24)

The right to remain silent is an important aspect of the presumption of innocence and should serve as protection against self-incrimination.

(25)

The right not to testify against oneself is also an important aspect of the presumption of innocence. When suspects and defendants are asked to give evidence or answer questions, they should not be forced to provide evidence or documents or to provide information that may be self-incriminating.

(26)

The right to remain silent and the right not to testify against oneself should apply to aspects related to the criminal offence of which a person is suspected or accused and not, for example, to issues related to identification.

(27)

The right to remain silent and the right not to testify against oneself imply that the competent authorities should not force suspects or defendants to provide information if they do not wish to do so. In order to determine whether the right to remain silent or the right not to testify against oneself has been violated, the interpretation by the European Court of Human Rights of the right to a fair trial under the ECHR must be taken into account.

(28)

The exercise of the right to remain silent or the right not to testify against oneself should not be used against a suspect or accused person and should not be taken in itself as evidence that the person concerned has committed the criminal offence in question. This should be without prejudice to national rules concerning the assessment of evidence by judges or courts, provided that the rights of the defence are respected.

(29)

The exercise of the right not to testify against oneself should not prevent the competent authorities from collecting evidence that can lawfully be obtained from the suspect or accused through the legitimate exercise of coercive powers, and that has an existence independent of the will of the suspect or accused, such as material obtained pursuant to a court order, material in respect of which there is a legal obligation to withhold or surrender at the request of the authority, such as samples of breath, blood, urine and body tissue for DNA analysis.

(30)

The right to remain silent and the right not to testify against oneself should not limit the power of Member States to provide that, for minor offences such as minor traffic offences, the conduct of the proceedings, or certain stages thereof, may take place in writing or without the suspect or defendant being questioned by the competent authorities in connection with the criminal offence concerned, provided that the right to a fair trial is respected.

(31)

Member States should consider the possibility that, where suspected or accused persons are informed of their rights under Article 3 of Directive 2012/13/EU, they should also be provided with information regarding the right not to testify against themselves, as laid down in national law in accordance with this Directive.

(32)

Member States should consider ensuring that, where suspects or defendants are provided with a statement of rights in accordance with Article 4 of Directive 2012/13/EU, that statement should also contain information regarding the right not to testify against oneself, as provided for in national law in accordance with this Directive.

How should the contradictions, lies, falsehoods, or “half-truths” of a defendant be assessed in a trial?

In the Supreme Court’s Ruling of 13 May 2014 (Cándido Conde-Pumpido) the answer is clearly stated.

“As we have just pointed out, for example in STS No. 359/2014 of 30 April, the accused is not obliged to testify, and in the event that he does so, the lack of credibility of his exculpatory statements does not constitute proof of his guilt, as he also has the constitutional right not to testify against himself” (…)

In another recent judgment of this Chamber, No. 679/13, of 25 July, it is already stated that

“The mere fact that the accused makes contradictions or lies in his statements does not constitute proof of the commission of the crime…

This assessment of the statements of the accused is justified by the need, in order to respect in depth the principle of presumption of innocence, to evaluate the explanations or alternative versions provided by the defence, in order to ascertain whether their plausibility and reasonableness detract from the evidential effectiveness of the prosecution’s evidence”.

In other words, silence, lack of credibility or the demonstration of the falsity of the exculpatory statements of the accused can never constitute evidence of the charge.

It is therefore incorrect to begin the analysis of the prosecution’s evidence with the defendant’s exculpatory statements, as these statements can in no way constitute prosecution evidence.

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