Editing Right to silence (section)

==History==
[[File:Edward coke.jpg|thumb|upright|Portrait of English judge Sir [[Edward Coke]]]]
Neither the reasons nor the history behind the right to silence are entirely clear. The Latin [[Brocard (law)|brocard]] ''nemo tenetur se ipsum accusare'' ('no man is bound to accuse himself') became a rallying cry for religious and political dissidents who were prosecuted in the [[Star Chamber]] and [[High Commission]] of 16th-century England. People coming before these tribunals were forced to make the [[ex officio oath|''ex officio'' oath]] by which they swore to truthfully answer the questions to be put before them without knowing what they were being accused of. This created what has been termed the [[cruel trilemma]] whereby these accused were forced to choose between committing the [[mortal sin]] of [[perjury]] (if they lied under oath to protect themselves), harsh punishment for [[contempt of court]] (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honour their oath). Sir [[Edward Coke]]'s challenge to the ecclesiastical courts and their ''ex officio'' oath is seen as the origin of the right to silence. With his decision that common law courts could issue writs of prohibition against such oaths and his arguments that such oaths were contrary to the common law (as found in his ''Reports'' and ''Institutes''), Coke "dealt the crucial blow to the oath ''ex officio'' and to the High Commission".<ref>{{cite journal |last1=Randall |first1=Stephen H. |title=Sir Edward Coke and the Privilege against Self-Incrimination |journal=South Carolina Law Quarterly. |date=1955 |volume= |issue= |pages=444 |doi= |pmid= |url= |access-date= |publisher=University of South Carolina School of Law |language= |format= |issn=}}</ref>

After the parliamentary revolutions of the late 17th century, according to some historical accounts, the right to silence became established in the law as a reaction to the excesses of the royal inquisitions in these courts. The rejection of the procedures of the Courts of Star Chamber and High Commission eventually resulted in the emergence of the principle, according to US jurist and law of evidence expert [[John Henry Wigmore]], "that no man is bound to incriminate himself, on any charge (no matter how properly instituted), or in any Court (not merely in the ecclesiastical or Star Chamber tribunals)". It was extended during the [[English Restoration]] (from 1660 on) to include "an ordinary witness, and not merely the party charged".

However, the right to silence was not always a practical reality for all accused in the English courts for some period afterwards. With limited access to legal counsel (often depending on the social status of the accused), a shifting standard of proof, and a system generally distrustful of silent defendants, a criminal accused who remained silent was often believed to be guilty and was sentenced. Nevertheless, it remained a basic right available to the accused and has been an accepted practice over the past few centuries. In England, the practice of judicial questioning of accused persons at trial (as distinct from questioning prior to trial), did not really disappear until well into the 18th century, but by the 19th century, the accused were not allowed to give evidence on oath even if they wanted to – also said to be a reaction to the inequities of the Star Chamber and High Commission.

In countries formerly part of the [[British Empire]] (such as [[Commonwealth of Nations|Commonwealth]] nations, the United States and Ireland) the right to silence has remained enshrined in the common-law tradition inherited from England, although it no longer applies in England and Wales, where remaining silent can be considered a sign of guilt by juries. NB Scots law, which is not derived from English law but wholly separate, still upholds the full right to silence. In the US, the right existed prior to the [[American Revolution]]. However, it was considered one of the most important safeguards protecting citizens against arbitrary actions of the state, and was enshrined in the [[Fifth Amendment to the United States Constitution|Fifth Amendment]] to the Constitution, along with the words "due process", which was first mentioned in a statute of Edward III in 1354 and contains similar wording to the Fifth Amendment.

The right to silence spread to many nations of the British Empire.  The two different but diverging paths along which these rights evolved and operate in Anglo-American jurisprudence (one through rights expressed in an entrenched constitution, the other in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth nations like New Zealand, where police officers are still required at common law to issue "Miranda-style" warnings (but which are completely unrelated to the US [[Miranda warning|''Miranda'' warning]] ruling) and inform arrested persons that they do not have to answer any questions but that whatever they do say (or do) can be used in court as evidence. The police must also determine whether the arrested persons understand these rights. Any failure to do so can jeopardize a criminal prosecution. While differing slightly from the wording used in the US, the intent is identical and comes from the inherited tradition of law. However, in Australia for instance, anything said by the accused under police questioning while in custody will generally not be accepted into evidence unless it is corroborated, generally by audio or video record. Australian police all wear chest cams as part of their standard issue, and turn them on with every interaction, so that they record and provide such evidence.

As in the US, suspects in some Commonwealth countries are also entitled to have counsel present during questioning. In the United Kingdom, laws introduced, have the suspects told they have the right to remain silent, but are now also cautioned that anything they do not reveal in questioning, but later rely upon in court may harm their defence. In other words, in some cases inferences can be drawn. The [[right to counsel]], which also became increasingly entrenched in the US following the American Revolution, gave defendants a practical method of mounting a defense while remaining silent, and the development of the modern police force in the early 19th century opened up the question of pretrial silence for the first time. The key American case of ''[[Bram v. United States]]''<ref>{{cite web |last1= |first1= |title=Bram v. United States |url=http://www.vlex.us/caselaw/U-S-Supreme-Court/Bram-v-United-States-168-U-S-532-1897/2100-20060675%2C01.html |website= |publisher= |access-date= |archive-url=https://web.archive.org/web/20070205232656/http://www.vlex.us/caselaw/U-S-Supreme-Court/Bram-v-United-States-168-U-S-532-1897/2100-20060675%2C01.html |archive-date=5 February 2007 |location= |pages= |language= |doi= |date= |url-status=}}</ref> paved the way for the right to be extended to pretrial questioning, and the practice of "''Miranda'' warnings" became established in the US and elsewhere following the case of ''[[Miranda v. Arizona]]'' in 1966.

While initially alien to [[inquisitorial]] justice systems, the right to silence spread across continental Europe, in some form, throughout the late 20th century, due to developments in international law which had an increasing universalisation of certain [[due process]] protections.