Monday, January 13, 2014

The right to remain silent in Spain (and Europe in general)

With the case of the daughter of the king of Spain going to court, something I found interesting was the fact that anyone in Spain would choose to testify at their own trial.

Both Spain and the US have the right to remain silent explicitly stated in their constitution. As usually happens over time, these rights slows erode away as courts find ways to weasel their way around the plain meaning in the constitution.

In the US, the courts have several strategies to compel testimony:

  • Granting immunity. Once you have been granted immunity, you are compelled to testify, and if you refuse can go to jail for contempt of court.
  • You can’t stop half way: Once you start answering questions, you lose the right for your silence to mean nothing.
  • Act of Production doctrine: you can be compelled to produce documents, evidence, etc if the government can prove they exist, even if they incriminate you

For this reason, the best strategy in the US is generally to keep your mouth shut. Of course, then the prosecutor will threaten to go to trail asking for 30 years in prison unless you agree to plead guilty and accept a plea bargain.

The Europeans have taken a different tact. Generally you can’t be compelled to testify, but the court can consider this as sort-of evidence of your guilt. .

In a pivotal case (John Murry vs the UK), the European Court of Human Rights, while ruling in favor the defendant with respect to the fact that he was not allowed access to a lawyer, allowed for this loophole:

On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself.  On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.

The problem with this “obvious” ruling is that it only would apply in the case where the prosecution isn’t able to prove their case without taking into account the silence of the defendant. If the prosecution could prove their case without it, then there’s obviously no need for the defendant to testify. This effectively creates an assumption of guilt, unless the defendant can prove otherwise.

For this reason it can make sense in Europe to testify in your own trial, since there’s no hard line about how much your silence can be used against you.


Graeme said...

I think when declaring before the judge as an imputado you're entitled to refuse to answer any question and also entitled to lie. It will be different if the case goes to trial, but at the moment the Infanta is not at that stage. Having read the document produced by the judge, if I was her I would opt for some long silences.

santcugat said...

She might, since she is always entitled to refuse to answer. The problem for her is that the judge can use this as an implicit admission of guilt if she can't come up with a reasonable explanation for what she did.

Graeme said...

He doesn't really need that. She signed everything, she lived off the money and if she doesn't talk.....

santcugat said...

Maybe she'll say she's mentally incapable of understanding these complicated matters due to royal inbreeding.