The So-Called ‘Right’ to Silence and the ‘Privilege’ Against Self-Incrimination: A Constitutional Principle in Search of Cogent Reasons

ABSTRACT

The accused's right to silence and its corollary, the witness' privilege against self-incrimination, have long been subject to a jurisprudential confusion which prevents the courts from establishing a rational justification for their existence. The international libertarian tendency is to elevate the traditional common law silence ‘rule’, a narrow defence against state coercion, into a fundamental human and constitutional ‘right’, which prohibits the evidentiary use of, and the drawing of adverse inferences from, the accused's pre-trial and trial silence. The problem is that the silence principle lacks a rational, moral and practical justification. Once elevated to the status of a fundamental human right the silence principle becomes inflexible and difficult to negotiate. A constitutional right to silence may well distort criminal procedure precisely because it is based on sentimentality and not on reason. The silence principle in the 1996 South African Constitution is a relative ‘right’, subject to a justifiable limitation, and may therefore be interpreted in a manner that neutralises or minimises these inherent flaws. In this sense, a utilitarian crime-control interpretation is to be preferred to a libertarian due-process interpretation.