Viktor Bérces: Evidence in Criminal Proceedings
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Chapter V. The Anglo-Saxon system of evidence today
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5.3. Characteristics of the US evidence system
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5.3.2. The testimony of the accused as a means of proof. The privileged role of the “right to remain silent”

5.3.2. The testimony of the accused as a means of proof. The privileged role of the “right to remain silent”

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The testimony of the accused does not constitute an independent means of evidence.1 The content of these statements can be divided into 3 categories:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • pleading not guilty
  • confessing and
  • nolo contendere statements. 2
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the case of guilty pleas, there is a trial by jury, while in the latter two cases there is an abbreviated procedure in which only the single judge decides and only the imposition of sentence is the substance of the proceedings. It is important to note that the accused is always aware of the type of sentence that may be imposed before making his statements.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

To assess confessions, four basic criteria must be met:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Awareness and knowledge of the legal consequences: this can be established if the accused understands the charge and its legal nature; the minimum and maximum penalty; the conditions of parole; the right to deny guilt and the right to waive the possibility of contesting his or her criminal responsibility in a regular trial.
  2. Non-coercion: this can be established (see Shelton v. USA) if the confession is not accompanied by physical or psychological coercion; threats; promises to stop unlawful harassment; misinterpretation or other promises that the prosecution could not make under the law (e.g. an offer to accept a bribe).3
  3. The existence of factual grounds for admission;4
  4. Ascertainability of the circumstances in points (a), (b) and (c) from the case file: this is necessary in order to ensure that the procedure and the decision taken on the basis of the declaration can be challenged in the future.5
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would note that “the accused who confesses shall be informed in full detail of the consequences of the confession and of his right to request a trial. If, however, a confession is made before the court and the trial is waived, the confession made outside the trial […] has the same effect as a conviction at the end of the trial.”6 In other words: US practice allows much more leeway for the relevance of a confession than European systems. It should also be noted that the US system also applies the principle of non self-incrimination. If the accused chooses not to confess, this in no way affects the question of guilt or innocence. As a result, “fewer defendants confess than in European systems. If, however, he [falsely] confesses and is found guilty, he will receive a heavier penalty for perjury. In the case of perjury, the prosecutor can initiate a new prosecution.”7 It also follows from this that US practice holds that the administration of justice takes precedence over the accused’s procedural “right of self-determination” as a potentially vulnerable legal subject.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The “right to silence” as a fundamental right of the burden occupies a prominent place among procedural guarantees. Károly Bárd’s study of the sociology of law points out that the importance of this practice, its legal content, is no longer just a general obligation of the authorities, but a matter of everyday knowledge.8

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. One of the greatest successes of the US justice system was the decision in Miranda v. Arizona (1966), which set a precedent in Europe and established this right in an institutional framework, i.e. that the accused are not obliged to testify at any stage of the proceedings. The Supreme Court decision stated that any person in custody or otherwise deprived of his personal liberty must be warned at the time of interrogation that (1) he has the right to remain silent; (2) if he nevertheless answers the questions put to him, his answers may be used as evidence against him at subsequent stages of the proceedings; (3) if he does not answer the questions put to him, his answers may be used as evidence against him at subsequent stages of the proceedings.He has the right to consult a lawyer at any time before or during his interrogation; the investigator has no right to influence the person questioned as to the making of a statement, nor to prevent the lawyer from being present at the same time during the procedural act, if the person questioned so wishes. If the person charged is unable to arrange for a lawyer because of his financial situation, the authority shall arrange for one to be appointed free of charge.
  2. The enforcement of charging privilege was also supported by the decision in Colorado v. Spring, which held that the defendant’s silence is considered to be legally binding even if new offences are committed. 9
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Notwithstanding the above, since the 1970s there has been a succession of case law decisions which have sought to narrow the scope of this precedent.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • In Harris v. New York (1971), the court ruled that it could be overruled in order to prove certain circumstances, such as the credibility of the accused. The reasoning of the decision stated that “the Miranda decision cannot be used as a shield against perjury […]”.10
  • The decision in Michigan v. Tucker (1974) already distinguished between the right to counselin the case of an attorney and a public defender.
  • In “Michigan vs. Mosley”, the court stated that the silence of a defendant who had previously insisted on a defense attorney was only reasonable until he testified at another police station, even a few hours later.
  • In Brewer v. Williams, the court declared that “the fact that the former mental patient was interrogated without even knowing of his status as a patient has no probative value.”11
  • In its decision in “New York v. Quarless," the court ruled that it is unnecessary for police to use any warning when questions are asked that are “reasonably prompted by concern for public safety.” 12
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

However, some research has shown that the quality of warnings depends mainly on the seriousness of the offence being prosecuted and the importance of the incriminating statement. US investigators only pay more attention to the accurate delivery of a warning if it serves the purpose of making a “valuable” confession or if it is admissible. In other cases, the warning may be seen as mechanical, with the result that citizens do not really appreciate its significance.13

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the last two decades, the American literature (on criminal procedure) has also seen the emergence of views that the right of the accused to remain silent should be limited. One of the most radical proponents of this view is Alan M. Dershowitz, a professor at Harvard Law School, who does not rule out the possibility of even ‘restrained’ torture interrogation of suspected terrorists.14 It is worth noting that in 2005 a study was published which stated that “torture as a profound violation of human values is not limited to the ticking bomb situation described by Dershowitz. The reality is that the US government authorises and implements brutal and humiliating interrogations through its media.”15
1 As I explained earlier, the courts accept its content as truth by default, since the accused is questioned as a “witness” and therefore has a duty to tell the truth.
2 Farkas ibid. 26.
3 Confessions may be challenged after the conviction by means of an appeal or a constitutional complaint. Farkas (2007) ibid. 26–27.
4 First, the North Carolina v. Alford judgment stated the importance of the principle that “a confession is admissible only if it has a factual basis.” North Carolina v. Alford 394 U.S. 459, 89 S. Ct. 1166 (1969). In Whitebread–Slobodin ibid. 578. In Farkas ibid. 27.
5 Farkas ibid. 27.
6 Mahler (2003) ibid. 78.
7 Mahler (2003) ibid. 79.
8 Károly Bárd: The price of silence. Fundamentum, 2005/3. 5.
9 This also means that warnings about the right to remain silent need only be given once by the authorities. In Tóth (1995) ibid. 217.
10 Tóth ibid. 217.
11 Tóth ibid. 217.
12 Tóth ibid. 217.
13 Balázs Elek: A vallomás befolyásolása a büntetőeljárásban. [Influencing testimony in criminal proceedings.] Debrecen, Tóth Könyvkereskedés és Kiadó, Debrecen, 2007. 98.
14 Dershowitz, Alan M.: Why Terrorism Works: Understanding the Threat, Responding to the Challange, Yale Univerity Press, New Haven-London, 2002, in Gácsi (2015) ibid. 54.
15 Luban, David: Liberalism, Torture, and the Ticking Bomb. Virgina Law Review (91) 2005. 1425–1461. In Gácsi ibid. 54.
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