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Many countries have laws that protect a suspect (or anyone else) from being forced to self-incrimination. For example USA have that codified in the fifth amendment and it's mentioned in the Miranda rights (before questioning a suspect). Perhaps it's even codified in international conventions.

What is the rationale of such law?

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    It's far from an international code. There have been serious suggestions to remove it or change the praxis so that silence is the same as a confession. – liftarn Aug 24 '17 at 7:06
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    This might make a good question for law.stackexchange.com – ShreevatsaR Aug 25 '17 at 16:54
  • FWIW, I would not agree that "many countries" have a right to remain silent. It is a pretty small minority. – ohwilleke Aug 25 '17 at 18:09
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    In the UK the standard arrest speech includes "you do not have to say anything, but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence". – Ben Millwood Aug 26 '17 at 13:19
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    Not only that. In Italy, if you are tried you have the right to lie to defend yourself. Also, you cannot be asked to testify against your closest relatives. – Andrea Lazzarotto Aug 27 '17 at 20:39
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As with many such rights, you should look to pre-modern Europe to understand the context in which such rights were introduced.

At that time, without forensic evidence, the best chance of a conviction was a confession, and easiest way to get a confession would be to mistreat a prisoner. There was no police force so magistrates and judges would be greatly involved in the interrogation of suspects. A judge could interpret a suspect's behaviour during the interview in any way he wished. If the judge was prejudiced against the suspect, this would lead to miscarriages of justice.

The fifth amendment of the US Constitution should be seen particularly in the context of the Star Chamber, which was a court in the UK. It was used to prosecute dissenters and Puritans. Those brought before the court were compelled to swear an oath, and if their answers were unsatisfactory (i.e. not matching the King's expectation) they would be convicted of perjury. Failing to answer would be a contempt of court.

In the modern context, the question becomes, "why maintain the right to silence". In modern jurisdictions, it has become clear that confessions are unreliable, and so modern jurisprudence depends much more on forensic evidence. Removing the right to silence would put pressure on more innocent people to give a false confession.

All this is bad justice. It's unfair to the suspect, and so it is unfair to the victim.

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    Good talk on the topic, which explains why this right exists from a more practical modern approach: youtube.com/watch?v=d-7o9xYp7eE – user11249 Aug 24 '17 at 7:06
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    There's a good comic (mostly from an American perspective but exploring the history, a lot of which of course comes from Britain) on the subject here: lawcomic.net/guide/?p=2282 – Muzer Aug 24 '17 at 8:35
  • Comments are not for extended discussion; this conversation has been moved to chat. – yannis Aug 25 '17 at 7:42
  • @Muzer That's a bit too cryptic for me. Is that supposed to be 'Jimmy' or his victim? Is it about forensic evidence or someone having a confession beaten out of them? – Pharap Aug 25 '17 at 18:11
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    @Pharap Link is to the first page of the comic. – user10742 Aug 28 '17 at 8:41
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Being arrested can be extremely stressful, especially if you are innocent since you might fear being prosecuted for something you didn't do in addition to being caught off guard.

After the arrest comes the detention, where you are isolated from the outside world and have eventually to deal with cops - and other people in detention. These conditions are even more stressful.

Take another example: something bad happened - somebody got hurt, died, there was an accident, whatever - and the police talk with you. You are stressed from what just happened and from the cops focusing on you.

Stress, exhaustion, and isolation weaken your mind very significantly. I have already gotten hallucinations just from lack of sleep. That kind of state makes you less able to fight back if people question you, and alters your perception of reality, which can be problematic in the particular context of detention of several reasons:

  • You are more likely to answer questions, even if the answer screws you.
  • You are more likely to say something in particular: loaded questions, bargains, intimidation, manipulation, doubt...
  • You can't even trust your own memories.

I'm not saying that being arrested and detained by the police is comparable to ingesting LSD of course. But being psychologically and mentally weaker than usual while dealing with people that may try to convict you and are not professional is not going to only depend on whatever actually happened. That's why you need a professional on your side for balance, and why it's a good idea to not talk until you have met with that person.

It is not a right that is there to help guilty people, it's there so that people aren't convicted for things they aren't responsible for, whatever else they are guilty of or not.

  • Obviously it shouldn't be there to help guilty people, but of course those that are in the criminal business obviously knows how to use their rights to their advantage. This means that one need a rather good reason to grant rights that will help them. In addition as pointed out testimonies may not be that reliable as evidence anyway. – skyking Aug 24 '17 at 11:46
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    @skyking I don't believe it changes much things regarding the professional criminals, as they would be more prepared to cover themselves and lie than the layman. – ksjohn Aug 24 '17 at 12:12
  • Given that you haven't been arrested either, I think "I don't if you have been arrested" doesn't really add anything, and you could consider removing it. – Masked Man Aug 25 '17 at 8:00
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    opinion based, does not explain why you still have the right to be silent in the courtroom as well and with your attorney present – user14816 Aug 25 '17 at 11:10
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    @Tlen When people ask why this or that law exists, it comes down to opinions. At least, in that case, it is pretty straight on, not like regarding your question. If I was asked about my opinion, I would say that editing your question so that it becomes more answerable would be a more effective strategy than posting comments on the answers of whoever pointed it to you. – ksjohn Aug 25 '17 at 11:22
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An innocent person can't benefit from talking to the police. The person concerned might accidentally say something false. Or he might say something that is true but is contradicted by a witness and the police may interpret this as lying. So an innocent person can be convicted as a result of talking to the police.

In addition, in almost every country there are many criminal offences that nobody with a lick of sense would imagine are criminal. So anything you say about anything you do may be a confession to a violation of the law no matter how innocent you think you are.

Now, you say that a criminal may use the rules to avoid conviction. This is true. On the other hand, the government has virtually unlimited resources to investigate and prosecute that person. And the government can compel people to testify. And as I noted above, there are many laws that can be used to prosecute people. So if the government can't prosecute criminals with all those advantages that would be extraordinary.

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    There are times an innocent person can benefit from talking to the police. Someone who saw a crime committed, for example, may benefit from having police catch the person who actually committed it. – supercat Aug 24 '17 at 15:25
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    You say you saw a crime being committed. You give details of the crime to the police. There are at least two ways you could have that information. (1) You saw somebody else do it. (2) You did it. The somebody else you mention isn't standing in front of the police right now giving them information about a criminal act. You are standing there. The police can arrest and prosecute you. And for all they know you did it. So why wouldn't they arrest and prosecute you? – alanf Aug 24 '17 at 16:01
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    If the police would be able to eventually place you at the crime scene anyway, the only outcome that's likely to be good for you is going to be having the police catch the actual crook. Coming forward isn't going to cause 100% of the police efforts to be directed toward the correct suspect, but letting the police spend a couple weeks following an evidence trail that leads to you isn't likely to help. – supercat Aug 24 '17 at 16:18
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    Incidentally, given the reduced cost of video recording, I'd like to see states require as a matter of policy that any supposed self-incriminating statements or "confessions" must be recorded, and that jurors be instructed that any claimed statements viewed with extreme skepticism in the absence of video evidence to back them up. – supercat Aug 24 '17 at 16:27
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    I wouldn’t quite say an innocent person can’t benefit from talking to the police. There are significant dangers in doing so (as mentioned in your video), which can be exacerbated by things like race, sex, age, socioeconomic status.... But to say that an innocent person cannot benefit is quite a broad statement indeed, which renders it inaccurate. The logical conclusion of your (broad) statement would be that no one should ever report a crime…which probably would be a bad thing. Of course, if you can afford a lawyer, it’s always best to have them do the talking.... – Obie 2.0 Aug 24 '17 at 17:32
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Modern rationale for such laws: police and federal agents will try to trick you into incriminating yourself, and it is ridiculously easy to do.

I was arrested on a penny-ante theft by check charge1, and such an experience is stressful for someone who's never had to deal with anything more serious than a traffic ticket in their lives2. We tend to blurt stuff out under stress that we don't think is incriminating, but sounds very different to someone who doesn't know us and is already assuming we've committed a crime. In my particular case, there was nothing I could say that would make the situation any worse (apart from something like, "wow, so this is only about the check, not the ... uh, you know what, never mind."), but as a rule you can only hurt yourself if you talk.

Shut up, keep shutting up, and let your paid legal representative do all the talking for you.


  1. Bounced a check, didn't deal with the fallout in a timely manner, warrant was issued, got dinged when I renewed by driver's license. Spent 2 hours in a holding cell, paid bail, made restitution to the merchant, took the mandated "Financial Management for Effing Idiots" class, charges were dropped.
  2. The officers who arrested me were courteous and professional, but the jail staff were damaged human beings.

  • What's the point of the anecdote? I was at least expecting the anecdote to support your position, but it says the exact opposite, i.e. there's not much you could say that could hurt you anyway. – Mehrdad Aug 27 '17 at 7:18
  • @Mehrdad: that being arrested can be highly stressful. – John Bode Aug 27 '17 at 9:29
  • Sure, but neither the question nor the constitution is about reducing stress during arrest, so it doesn't really seem relevant? – Mehrdad Aug 27 '17 at 9:32
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Adding to other answers, the Star Chamber gave rise to what was called the "cruel trilemma". Being forcibly questioned on oath and without warning or legal advisors, with no hint of what the questions related to or whether it was a matter involving them or someone else (maybe a family member or friend), the subject either had to incriminate themself or someone else by telling the truth, be charged with perjury if they lied or other witnesses said differently when questioned in turn, or be charged with contempt of court if they didn't speak. It was used politically of course.

The right to silence is sometimes traced to protests against this system, although hints of it existed earlier. When democratic parliamentary lawmaking came to pass, the right to not self incriminate became part of the package as a kind of reaction to the past.

In more recent centuries it was held that there were other reasons as well, mainly that it placed limits on the use of coercion and police abuse, and forced courts to look at evidence more than possibly unreliable confessions. The same area of testimony covers torture, improper searches, due process, the requirement for search warrants (why can't police "just enter" anyone's home? Similar reasons) and similar rights.

In the united states they became enshrined in the new constitution and Miranda came from the requirement to be sure that the suspect couldn't plead his constitutional rights had not been violated.

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My question is what is the rationale of such law?

What would be the alternative if you would not have a right to be silent? Let's say there would be a duty to say the whole truth.

  • What should be the punishment if somebody fails to tell the whole truth?
  • How would you determine if somebody failed to tell the whole truth?
  • What is the truth anyway? Isn't the whole purpose of a trial to find that out?
  • And would then others (everyone) also need to say the whole truth or only the suspect?
  • And what if someone just says he cannot remember?

You see, there are a lot of unsolved problems with the alternative and going by the right to remain silent is at least the much more practical solution although sometimes you are actually ordered to testify and tell the whole truth. Often enough weak memories happen then.

You can assume that everyone would lie if telling the truth would mean to accuse himself. So you would still need to prove him guilty but may be forced to additionally punish him for not telling the whole truth. This may be a bit too much punishment for little gain.

With this I already included that torture is out of the question.

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    How would you determine truth? Four people are standing on four different corners of an intersection when a car accident occurs. All four give different accounts of what happened. Yet all are telling the truth, as they saw it but their account differ. So whose telling the truth? – DCook Aug 24 '17 at 12:17
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    @DCook Probably none of them (if you define truth as what really happened)? – Trilarion Aug 24 '17 at 12:21
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    I don't think that explanation is valid. Here other can be obliged to testify under oath, yet the accused cannot be forced to testify, also it's a criminal act to under oath fail to (knowingly) tell the the truth, the whole truth and nothing by the truth. – skyking Aug 24 '17 at 12:29
  • @skyking I think you're right. Although quite often, others really do remember very badly when under oath even though it may be a criminal act to lie, often enough they get away with not telling the truth, the whole truth and nothing but the truth. I extended the answer to argue specifically for the defendants side now. – Trilarion Aug 24 '17 at 12:50
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    @Dcook Not entirely on-topic but related. An episode of Brain Games took several people to a tour and, without them knowing, staged a "car crash" (actually a stunt by a professional driver). Then a "policeman" came and began asking the witness to depict the scene. To some of them the policeman asked them which speed they estimated the car to have when it "smashed" into a parked car, to other he asked the speed when the car "bumped" into the car. The people in the first group gave speed stimates way higher than the people in the second group. youtube.com/watch?v=qQ-96BLaKYQ – SJuan76 Aug 24 '17 at 15:33
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Even if you are an innocent person, you could commit something immoral or secret even if it is not a criminal offense. For instance you could be with a lover or doing some secret business negotiation. Announcing such information may harm your private life and/or business interests, while evidence against you may be so weak so not worth disclosing such spicy things for defense.

If there was no right to remain silent, one could open a false accusation against you only to know your whereabouts at the time or other details you would like to keep secret.

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    But the protection against self-incrimination does not apply to such thing as they are not criminal... – skyking Aug 25 '17 at 5:43
  • @skyking where I was referring to protection against self-incrimination? The OP was asking what are negative sided of removing right to keep silent. I showed one. – Anixx Aug 25 '17 at 8:25
  • @Anixx But the thing is... in most jurisdictions just wanting to protect your personal interest when they are not a crime doesn't give you the right to remain silent (at least not in court). – Philipp Aug 25 '17 at 8:37
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    @skyking the questio was about right to be silent. I have shown that if this right removed, someone can rise a false accusation against you just to extort personal secrets. – Anixx Aug 25 '17 at 9:05
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    @Anixx When you are a witness in a criminal case, you claim you don't remember anything and a court finds that to be very unlikely, it can bring you in trouble for obstruction of justice in some jurisdictions. But that's more of a topic for Law.SE. – Philipp Aug 25 '17 at 10:52

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