The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo American case law
Bibliographic record
Abstract
The right to silence is difficult to analyse in theory and practice as it has different applications at different stages of a criminal prosecution. The accused’s right to silence is also a manifestly modern right which has often been confused with its traditional English common-law ancestor, the witness privilege against self-incrimination. In order to explain the right to silence, this article begins by briefly setting out its libertarian jurisprudential foundations as a Hohfeldian immunity against compulsion and self-incrimination. The analysis is sourced from American and Canadian case law, as there is no South African case law on point. Thereafter, the evidentiary value of a right to silence is explained in utilitarian terms by critically examining the adverse inferences which may be drawn from silence as an item of circumstantial evidence at the pre-trial and trial stages of criminal proceedings. The evidentiary probative value of silence is analysed in its traditional common-law context as a bare rule of evidence, as well as in its modern constitutional context as an entrenched constitutional right. This critical evaluation is based on a rich vein of English, South African and other common-law and constitutional case precedent. Finally, this article suggests a possible five-legged model which may provide a consistent and coherent formula for determining the probative value of an accused’s invocation of silence in all factual circumstances.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.016 | 0.029 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.005 | 0.046 |
| Scholarly communication | 0.010 | 0.007 |
| Open science | 0.002 | 0.005 |
| Research integrity | 0.005 | 0.007 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".