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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?