The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo-American case law

• Pages: 305-334
• Published date: 15 May 2020
• Citation: (2020) 137 SALJ 305
• Date: 15 May 2020
• Author: Theophilopoulos, C.

305

THE EVIDENTIARY VALUE OF AN ACCUSED’S

INVOCATION OF THE PRE-TRIAL AND TRIAL

RIGHT TO SILENCE THROUGH ANGLO-

AMERICAN CASE LAW

CONSTANTI NE TH EOPHILOPOU LOS†

Associate Profe ssor, School of Law,

University of the Witwatersrand, Johannesburg

The right to sil ence is dic ult to analyse in theor y and practice a s it has dierent

application s at dierent stages of a crimin al prosecution. The accused’s right to s ilence

is also a manifestly m odern right whic h has often bee n confused with it s traditional

English common -law ancesto r, the witness priv ilege against self-in criminatio n.

In order to explain t he right to silenc e, this article b egins by brie y setting out its

libertar ian jurisprudential foundat ions as a Hohfeldian immunity against c ompulsion

and self-incr imination. T he analysis is source d from Americ an and Canadian c ase

law, as there is no S outh African case law on poin t. Thereafter, the evidenti ary value

of a right to silenc e is explained in utilitaria n terms by critically exa mining the adverse

inferences w hich may be drawn f rom silence as an it em of circumsta ntial evidenc e at

the pre-trial a nd trial stages o f criminal proc eedings. The ev identiary proba tive value

of silence is an alysed in its traditional common-law con text as a bare rule of evidence,

as well as in its mode rn constitution al context as an e ntrenched const itutional right.

This crit ical evaluation i s based on a rich vei n of English, South Af rican and othe r

common-law a nd constitutional case precede nt. Finally, this article suggest s a possible

ve-legg ed model which may provide a cons istent and coherent form ula for determining

the probative value of a n accused’s invocation of s ilence in all fact ual circumsta nces.

Right to si lence – evident iary v alue – constit utional r ights – ad verse

inferences

I IN T RODUC TIO N

The right to s ilence, and the ev identiar y inferences t hat may be logica lly

drawn fr om the invocation of th is constitut ional ri ght by an accused

in crim inal pr oceeding s, is a concept which is not ea sily de ned in

jurispr udential or ev identiar y term s. Lord Musti ll, in Smith v D irector of

the Serious Fraud S quad,1 described t he right to si lence as ‘[raisin g] strong

but unfocused fe elings. I n truth it doe s not denote any sing le right but

rather refers to a d isparat e group of immu nities wh ich dier in nat ure,

† BSc LLB L LM LLD. Attor ney of the High C ourt. https://orcid.org/0000-

0003 -4336 -1044.

1 (1992) 3 All E R 456 (HL) at 463 –4; Averill v UK [2 000] Cri m LR 683

para 47; Doyle v Ohio 426 US 610 (1976) at 617. Any attempt to a nalyse a p ost-

arrest i nvocation of s ilence is in solvably ambig uous.

(2020) 137 SALJ 305

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306 (2020) 137 THE S OUTH AFRICAN L AW JOURN AL

origi n, incidence a nd import ance.’2 The Constit utiona l Court i n

S v Boesak3 noted t hat the rig ht to silence has d ierent applica tions at

dierent st ages of a crimin al prosecution, and that a ny evidentiary an alysis

of the right dep ends upon the circ umstance s, the qual ity of evidence, a nd

the weight given to such ev idence. The accusatoria l right to silence, and its

corollar y the priv ilege aga inst self-i ncrim ination i n its various com mon-

law, statutory a nd constitut ional form s, is an accuse d’s procedural de fence

again st the intr usive attempt by st ate law-enforcement a gencies to ta ke

substant ive advantage of t he accused’s decis ion not to co-operate w ith

the state dur ing the pre-trial a nd trial stages of c rimi nal proceed ings. A s a

procedural me chanism t he South Afr ican silence principle operate s at two

levels. First , silence as a const itutiona l defence is a general i mmunit y (as

dened below) aga inst the deli berately desig ned coercive atmosphere of

a police investig ation or court room tri al. Secondly, the pri vilege ag ainst

self-incr imina tion is a specic i mmunity aga inst any di rect attempt by the

state to solic it self-incri minat ory evidence f rom the accused .

The evolution of a right t o silence, in contr ast to its much older

cousin the priv ilege ag ainst sel f-incri minat ion,4 is due to a number of

uniquely in sular Eng lish acc usatoria l inuences. F irst, the acc used’s

pre-tr ial and tr ial right to silence is a d istinctly modern cr eation, althou gh

it is often conf used with its a ncestor, the wit ness privi lege aga inst self-

incri minat ion.5 The rig ht to silence, as it is pre sently inter preted in s 35(1)

(a), (b) and (h) of t he Constitut ion, gained it s modern procedu ral stat us in

England a nd Wales only wit h the passing of s 1(a) a nd (b) of the Cr imin al

Evidence Act of 1898. Before 1898, the accus ed was not a competent

or a compellable w itness either for the defe nce or for the prosecution.6

Secondly, the development of the rig ht in Engl ish common law h as been

2 See also G Ho rowitz ‘The pr ivilege a gain st self-inc rimi nation: How did it

origi nate’ (1958) 31 Temp le LQ 121 at 143: ‘[T]he Fifth A mendment is not g ood

legal log ic, but is a relig ious princ iple of human ness and merc y graf ted upon the

com mon l aw.’

3 20 01 (1) SA 912 (CC) para 24; R v Ismail 1952 (1) SA 204 (A) at 210A.

The risk of si lence cannot be an alysed in term s of logic; it depends on a cor relation

and asses sment of factors by the tr ier of fact and on h is or her judgme nt.

4 S v Lwane 1966 (2) SA 433 (A) at 438. The tr aditional C anon law maxi m nemo

tenetur se ip sum accusare has been co died in s 203 of the Cr imina l Procedure Act

as a voluntar y personal privi lege against the a nsweri ng of authorit ative question s

which could ex pose a witne ss to the ris k of a future c rimi nal prosecution.

5 S v Manamela 20 00 (3) SA 1 (CC) para 35; Osman v Attorney-General, Transvaal

1998 (4) SA 1224 (CC) para 17.

6 For some 600 ye ars unti l the late 19th cen tury t he maxi m nemo debit esse

in propria c ausa (no man sh all be a w itness in h is own cause) ha d rendered the

accused ’s right to sile nce procedura lly redu ndant in A nglo-A merican c rimi nal

proceedings. I n Ferguson v Georgia 365 US 570 (1961) at 577 it was pointed out

that an A merican acc used was banned from te stifying at t rial u ntil about 1878.

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