The evidentiary value of adverse inferences from the accused's right to silence

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Author: C Theophilopoulos
• Date: 24 May 2019
• Pages: 321-336

The evidentiary value of

adverse inferences from the

accused's right to silence

C THEOPHILOPOULOS*

Abstract

The point at issue is whether the South African right to silence should be equated

with the United States constitutional prohibition against the evidentiary use of

adverse inferences from the criminal defendant's invocation of the Fifth

Amendment (a libertarian due process model) or the English statutory approach

which permits the drawing of specific adverse inferences from pre-trial or trial

silence (a utilitarian crime control model). South Africa's criminal justice system

would be better served by adopting the English regime, which rationally balances

the defendant's procedural rights against the state's regulatory interests.

Introduction

The defendant's right to silence is universally recognized in common,

statutory and constitutional law as one of the defining characteristics of the

accusatorial-adversarial system of criminal justice. However, the silence

principle of the twenty-first century is very different from its immediate

utilitarian common-law ancestor. The traditional silence principle was a

limited evidentiary rule based on the utilitarian necessity of preserving the

truth-seeking function of the criminal process. It was narrowly intended as a

protection for the defendant against coercive state practices and as a

prohibition against the admission of involuntary confessions. Adverse

inferences were freely drawn from silence and until the 1930s Anglo-

American courts unconditionally drew such adverse inferences from both the

defendant's pre-trial and trial silence.

The silence principle of the twenty-first century has been redesigned and

widened into immunity against the answering of pre-trial interrogatory

questions and into a right not to give evidence at trial. In some Anglo-

American jurisdictions, ie the United States, the constitutional silence

principle has been construed to include an absolute prohibition against the

*



BSc LLB (Wits) LLM LLD (Unisa)

Attorney of the High Court.

321

(2002) 15 SACJ 321

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322

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SACJ •

(2002) 15 •

SAS

drawing of adverse inferences.

1

England has expressly chosen to modify the

common-law silence principle by codifying the various types of adverse

inferences that may be drawn from the accused's invocation of silence. The

South African silence principle is caught in a jurisprudential divide, delicately

poised between the English common-law and the American constitutional-

law experience. Its past is inseparably linked to the English common-law, but

its future may well be influenced by the corpus iuris of the American Fifth

Amendment.

The South African right to silence prior to the introduction of the interim

Constitution was a mere slavish imitation of English common-law and a

repetition of prevailing English judicial precedent. The primary break with

the English common-law began in 1993 with the entrenchment of a 'Fifth

Amendment style' silence principle in s 25 of the interim Constitution.

2

The

subsequent refinement of the defendant's right to silence in s 35(1)(a)(b) and

s 35(3)(h)(j) of the final Constitution

3

served to reinforce the gradual rift from

English precedent. The crucial question is whether the South African

Constitutional Court will follow the United States 'due process' approach

4

which absolutely bars the drawing of adverse inferences from the

defendant's Fifth Amendment invocation of the right to silence, or the

English 'crime control' approach which statutorily limits the right to silence

and allows the prosecution to draw adverse inferences from silence in certain

well defined circumstances.

5

The nature and extent of constitutionally permissible adverse inferences

has not yet been decided by the South African Constitutional Court and was

expressly left open in

Osman and Another v Attorney-General Transvaal.

6

The suggestion is advanced that South Africa is better served by adopting the

lucid definitions and categories of permissible adverse inferences as set out

by the English Criminal Justice and Public Order Act 1994. The English

1



Griffin v California

380 US 609 at 614 (1965),

Miranda v Arizona

384 US 436 at 468 (1966),

Fisher v United States

425 US 391 at 400 (1976),

New Jersey v Portash

440 US 450 at 459 (1979).

2

The Fifth Amendment of the United States Constitution (1791) 'no person shall be ...

compelled in any criminal case to be a witness against himself. Similarly s 25(3)(d) of the

interim Constitution, Act 200 of 1993 reads `... and not to be a compellable witness against

himself or herself.

3

Constitution of the Republic of South Africa, Act 108 of 1996 particularly s 35(3)0) `... not to

be compelled to give self-incriminating evidence'.

4

HL Packer Two models of the criminal process' (1964) 113

UPalRev 1.

Due process' is a

negative model because it places limitations on state regulatory powers by emphasising

procedural human rights. Its validating authority is supra-legislative or constitutional law.

5

'Crime control' is a positive model which emphasises administrative efficiency by abolishing

unnecessary protective procedural rules. Its validating authority is usually a legislative

process.

6

1998 (4) SA 1224 (CC), 1998 (2) SACR 493 (CC) at para 22.

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