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8 Dartmouth L.J. 1 (2010)

handle is hein.journals/dcujl8 and id is 1 raw text is: THE RIGHT TO AVOID SELF-INCRIMINATION AND THE CONCEALMENT OF A DEFENDANT'S CRIMINAL PAST DR. HAYA ZANDBERG* This paper attempts to substantiate the following claim: That the readiness of legal systems to recognize the defendant's right of silence as evidence against him is influenced by the position taken by that legal system towards the defendant's right, when testifying in his defense, not to be investigated about his criminal past. This paper elaborates on this claim by referencing a number of systems in comparative law. I. INTRODUCTION .......................................... ....... 1 II. LOGICAL INFERENCES FROM SILENCE .............. ............... 2 III. THE UNITED STATES.....................3.... ..........3 IV. CANADA .................................. ..........4 V. BRITAIN. ...................................................... 6 VI.ISRAEL .............................................9 VII. CONCLUSION ......................................... ........9 I. INTRODUCTION Do judges and juries construe a defendant's decision to remain silent as incriminating evidence? The answer depends on whether or not the defendant's criminal past is admissible in court. If it is admissible, the decision to remain silent is less likely to be interpreted as incriminating evidence. In such situations, judges and juries can simply presume the defendant remains silent in an attempt to avoid revealing his criminal past; the silence indicates nothing about whether the defendant has committed the crime in question. In situations where a defendant's criminal past is inadmissible, however, a defendant who exercises silence seems to conceal evidence directly pertinent to the case at hand. This paper is divided into five sections. In the first, I examine the logic behind inferring guilt from a defendant's refusal to testify. In the subsequent sections, I examine the American, Canadian, British and Israeli legal systems determine whether silence suggests guilt in each country. * Haya Zandberg is a law professor at the Hebrew University of Jersualem. 1