緘默權/沉默權的歷史 History of Right to Silence
本帖最後由 孤寂如雲 於 2011-2-23 18:25 編輯緘默權/沉默權的歷史
History of Right to Silence
“你有權保持緘默，但是你所說的一切都將會成爲呈堂證供。”——這句話，每一個常看電視的香港人都會耳熟能詳。不過，有多少人知道它的來源和歷史？
以下為英文論點筆記 Point notes
1.1 The earliest right to silence could be found in Roman Law,which indicated that "forcing someone to proceed a lawsuit（訴訟）which opposing himself is not allowed".
1.2 Some people think that modern system of right to silence was builded in 17th century in UK.But some others think that it should be in 18th century.They find that in 17th century,courts in UK used "let the defendent speak"（讓被告人發言） mechanism.
1.3 In 1912,right to silence was codified（被編撰成法典）in England and Wales,by the "Judge's Rule"（《法官規則》）.It meant intentional right to silence（明示沉默權）had been recognized.
1.4 In U.S.,right to silence was recognized with the Fifth Amendment to the United States Constitution（美國憲法第五修正案）in 1924.
1.5 This amendment was launched to oppose the self-incrimination（自我歸罪原則）.
1.6 Unlike UK,U.S. still interpreted the Fifth Amendment to the United States Constitution as unintentional right to silence （非明示/暗示沉默權）until 1966.
1.7 In 1966,the intentional right to silence was recognized with the establishment of Miranda Rule（米蘭達規則）.
1.8 Milanda is a black male who raped a white woman,he was forced to admit the guilt and he pleaded guilty.But then he submitted appeal to the Supreme Court of the United States（美國最高法院）,and became guiltless（無罪的）.Reason for this result was evidences which were got with illegal method would not be recognized.
1.9 Policemen in U.S. always say " you have the right to remain silent.Anything you say can and will be used against you in court fo law.You have the right to talk to a lawyer and have him present while you are being questioned.If you cannot aford to hire a lawyer,one will be appointed to represent you before questioning, if you wish one."
2.0 Intentional right to silence and unintentional right to silence are two types of right to silence.
2.1 Australia has no constitutional protection for the right to silence, but it is broadly recognised by State and Federal Crimes Acts and Codes and is regarded by the courts as an important common law right.
2.2 In general, criminal suspects in Australia have the right to refuse to answer questions posed to them by police before trial and to refuse to give evidence at trial. As a general rule judges cannot direct juries to draw adverse inferences from a defendant's silence (Petty v R) but there are exceptions to this rule, most notably in cases which rely entirely on circumstantial evidence which it is only possible for the defendant to testify about (Weissensteiner v ). The right does not apply to corporations (EPA v Caltex). —— Adapted from Wikipedia
2.3 The right to silence is protected under section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms.
2.4 The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.
2.5 Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the witness stand and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. This may be contrasted with the US right to refuse to answer incriminating questions under the 5th Amendment even while on the witness stand. However section 13 of the Canadian Charter of Rights and Freedoms guarantees that a witness may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence but only where that evidence is to be used against a third party. —— Adapted from Wikipedia
2.6 Article 10 of the Hong Kong Bill of Rights Ordinance（《人權法案》） guarantees the right of getting just trial,this article includes the protection of right to silence to accused person.
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