It’s worth replicating a lawyer’s comment at Kiwiblog on a defendant’s right to silence:
Allowing juries to take into account the defendant’s choice to remain silent when they are deliberating is specifically designed to punish a person who chooses to remain silent. You can say that, technically, there remains a right to silence, but that is to ignore the actual effect of the law.
The UK has this and one thing you understand when speaking with lawyers is that this rule has in fact ended the right to silence. To remain silent is to invite the jury to presume that you have something to hide and therefore must be guilty. It is that simple.
Moreover, it ignores the reality of police and court room questioninng. It is not a level playing field. It is not two people of equal intellligence and ability discussing a matter. It is questioning designed to elicit information about the guilt of the suspect.
Hell, in a courtroom guilt isn’t even necessary- if you can make them look bad enough then your job is done. Their answers aren’t important if they lose their temper, or struggle to answer fluently.
I have represented a person in police interviews who is of below average intelligence, and who struggled with my own, very patient, questioning. Whenever the police questioned him he always ended up sounding bad because he often got confused. So I advised him to remain silent until he had spoken to me. That helped, but under your rules he would have been punished in the jury room.
All because idiots say that ‘if you have nothing to hide then you have nothing to fear’. That is one of the dumbest lines I have ever heard, but people keep repeating it.
Surely, as they were utterly convinced that Ewen didn’t do it, that they would have an interest in finding out who did kill his brother-in-law.
Who says the defence is utterly convinced that McDonald didn’t kill Scott Guy? You surely don’t believe that Greg (King, McDonald’s defence lawyer) was giving his own opinion in the trial, do you? I hope not, because defence lawyers are not there to give their own opinion and to do so is to breach the rules of professional conduct. We are there to give the client’s opinion. Greg was commenting on the evidence, sure, and so he should, but don’t confuse that with a commentary on actual guilt.
But you also seem to be unaware that for Greg to sit down with the Crown and Police (and why would he want to? He isn’t an investigator and finding who killed Scott Guy is not his responsibility) would require explicit permission from McDonald first. How likely are you to get that, huh?
The fact remains that most of the ‘reforms’ the SST has advocated are copies of or modeled on changes in the UK justice system designed to reduce the number of acquittals and make investigations easier for the police.
It is always popular to reduce the rights of ‘criminals’, and the public will always support doing so, at least until they are wrongfuly accused and suddenly realise that it wasn’t the rights of ‘criminals’ that were taken away or reduced, but their own rights.
But by then it is too late.