Right NOT to testify on your own behalf- why?

C Montgomery Gurns II

edit- title should read Right NOT to testify on your own behalf


Just something that came up in another thread, and regarding something particular from the Graham Dwyer trial. From what I gather, in most cases in Ireland where the charge is murder, the defendant has been caught reasonably red handed, which will usually force them to request to plead to the prosecution to plead guilty to manslaughter instead of murder (or rape, where the defendant claims consent was given and takes to the stand to explain such).

If the prosecution think that this is a cop out and they have enough evidence to convince a jury of their case, the murder trial will proceed, and the defendant will be called upon to explain why he is guilty of manslaughter, not murder (extreme provocation, fight that got out of hand, lack of pre planning etc etc).

In the case of Dwyer, he refused to take to the stand on the principle that the state had to prove his guilt, and he had no duty to explain his actions and personality, as reprehensible as most of it was.

Regardless of the evidence, which of course was largely circumstantial, I would find it very hard to give someone who refused to explain their actions an equal review in terms of their guilt, compared to, say, if Dwyer had got up and admitted he was as sick as his own defense lawyer conceded, but offered an explanation as to how and why he was a victim of extraordinary circumstance.

Given that, and I'm sure most people would feel the same way, why do defense lawyers proceed with such stonewalling? Even if the jurors state otherwise, surely they know that in their heart of hearts it would be nearly impossible for a juror to give the time of day to someone who refuses to tell their side of the story for fear of tripping up, as it were. Surely they would gamble that, in that particular case, a man who was skilled enough to hide his double life from friends and family for decades might just have the oratory skills to swing a jury from the most unsalvagable circumstances?

Ken.

Mod-Locking this for a move to the legal discussion forum. Don't know if they'll allow it. I'll also update the thread title for you.

Pat Mustard

Mod:

Thread reopened but please leave out the emotive side of it. It is useless from the perspective of legal discussion and therefore it is off topic.

This discussion should be about whether it may make more sense for an accused to give evidence or not, depending on the circumstances. The obvious thing to be mentioned is what might come out in cross examination.

No discussion of the Graham Dwyer case please, as I understand that there is an upcoming appeal.

If the above is ignored, offending posts will be deleted and the thread will be closed.

ArmaniJeanss

C Montgomery Gurns II wrote: »

edit- title should read Right NOT to testify on your own behalf


Just something that came up in another thread, and regarding something particular from the Graham Dwyer trial. From what I gather, in most cases in Ireland where the charge is murder, the defendant has been caught reasonably red handed, which will usually force them to request to plead to the prosecution to plead guilty to manslaughter instead of murder (or rape, where the defendant claims consent was given and takes to the stand to explain such).

If the prosecution think that this is a cop out and they have enough evidence to convince a jury of their case, the murder trial will proceed, and the defendant will be called upon to explain why he is guilty of manslaughter, not murder (extreme provocation, fight that got out of hand, lack of pre planning etc etc).

In the case of Dwyer, he refused to take to the stand on the principle that the state had to prove his guilt, and he had no duty to explain his actions and personality, as reprehensible as most of it was.

Regardless of the evidence, which of course was largely circumstantial, I would find it very hard to give someone who refused to explain their actions an equal review in terms of their guilt, compared to, say, if Dwyer had got up and admitted he was as sick as his own defense lawyer conceded, but offered an explanation as to how and why he was a victim of extraordinary circumstance.

Given that, and I'm sure most people would feel the same way, why do defense lawyers proceed with such stonewalling? Even if the jurors state otherwise, surely they know that in their heart of hearts it would be nearly impossible for a juror to give the time of day to someone who refuses to tell their side of the story for fear of tripping up, as it were. Surely they would gamble that, in that particular case, a man who was skilled enough to hide his double life from friends and family for decades might just have the oratory skills to swing a jury from the most unsalvagable circumstances?

I kinda agree, I always think that an innocent person will want to scream it from the rooftops.
However I can see it from the defences pov as well - I read in a book (Grisham/Connolly maybe?) a quote that stuck with me where a defence lawyer says that "many a winning defence has been destroyed by a defendant insisting on taking the stand".
Worth remembering that it won't just be the defendant telling 'his side of the story', they'll also be subject to a skilled prosecution cross examination with the aim of getting them to appear aggressive/argumentative/unreliable etc.

Just to clarify, this is a 'layperson' answer.

NUTLEY BOY

ArmaniJeanss wrote: »

I kinda agree, I always think that an innocent person will want to scream it from the rooftops.
However I can see it from the defences pov as well - I read in a book (Grisham/Connolly maybe?) a quote that stuck with me where a defence lawyer says that "many a winning defence has been destroyed by a defendant insisting on taking the stand".
Worth remembering that it won't just be the defendant telling 'his side of the story', they'll also be subject to a skilled prosecution cross examination with the aim of getting them to appear aggressive/argumentative/unreliable etc.

Just to clarify, this is a 'layperson' answer.

I specifically DO NOT refer to DPP -v- Dwyer as that is awaiting further legal outings...

Irish criminal courts do not issue verdicts of innocence. The verdicts available are either guilty or not guilty. That said, there is the odd case where a defendant eventually receives certification that they have been the victim of a miscarriage of justice - see DPP -v- Nora Wall.

A finding of not guilty is an acquittal but it is not a declaration of innocence. An acquittal is simply a reflection of the failure of the prosecution to establish the case against the accused to the required standard. We do not have the third Scottish option of not proven.

All innocent people are not guilty. Some people who are not guilty are not actually innocent as a matter of fact. For example, Roger actually robs a bank - assume intent present - but the evidence is not enough to convict him criminally. The law will, of course, say that an acquitted person is deemed to be innocent in the legal context.

"Winning defences" have been ruined by defendants insisting on giving evidence. The converse can happen too. We once dealt with a civil case where the defendant was a truly and utterly useless article in terms of his evidence and we were on the edge of yielding on liability. We put him in to evidence for the purpose of letting the jury assess him on a very limited piece of evidence. The jury loved him especially after he was roughed up on cross examination. We went from imminent defeat to a 50/50 finding on fault.

As far as wanting to scream innocence goes you need to be really careful that there is nothing nasty lingering that could nail you on cross examination. In the law of equity there is a maxim that he who comes seeking equity must do so with clean hands. That is no less true of a criminal defendant who wants to take the screaming innocence approach.

BTW the purpose of cross examination is to test the credibility of the witness and or the evidence they have tendered. Unfortunately, it can turn to the level of a common street brawl if the judge is bored or asleep. The most artful cross examiners I have seen are not aggressive, they are just very skilled

In relation to evidence from the defendant I think that Irish juries are still warned not to draw an adverse inference from the fact that the accused did not give evidence. The defence does not have to offer any evidence.

Samuel T. Cogley

Innocent UNTIL proven guilty. An Innocent person has to prove nothing, it's up to the state to prove guilt. Ergo a defendant can not be compelled to testify.

Fred Swanson

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GM228

Samuel T. Cogley wrote: »

Innocent UNTIL proven guilty. An Innocent person has to prove nothing, it's up to the state to prove guilt. Ergo a defendant can not be compelled to testify.

Let's not forget the reverse legal burden of proof where the accused may have to prove for example a defence they raise on the balance of probabilities.

Samuel T. Cogley

GM228 wrote: »

Let's not forget the reverse legal burden of proof where the accused may have to prove for example a defence they raise on the balance of probabilities.

Evidencial burden not impinging on the presumption of innocence and all that good half remembered stuff learnt over a few pints the night before the exam...

GM228

Fred Swanson wrote: »

And is under no obligation to make any statement whatsoever. He can sit in the Garda station for days staring at a spot on the wall and there is nothing they can do.

Unless statute requires you to answer.

C Montgomery Gurns II

Samuel T. Cogley wrote: »

Innocent UNTIL proven guilty. An Innocent person has to prove nothing, it's up to the state to prove guilt. Ergo a defendant can not be compelled to testify.

That is indeed true, but one need look only at a certain well known missing child case, one of the main reasons so many of the public have a negative opinion of the parents is their refusal to answer the two dozen or so very basic questions that the police asked them when they were officially considered suspects, not to mention their failure to take a lie detector test (while I have no time for the official story at all I can concede why they would decline to take a LD test even if they were telling the entire truth, given the risk of a false positive and its reputation as being pseudoscience). While you may argue that law isn't something that is tried in the court of public opinion, the family concerned haven't exactly shied away from courting the section of the public that believes them and feels sorry for them, therefore to me, to not make any substantial effort to sway the section of the "jury" as it were as to their innocence seems bizarre to me.

Fred Swanson wrote: »

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A detainee can indeed do that. From what I gather this happens primarily in cases involving gangland murders, where, on the word of an informer, or even a case of arresting the most likely culprit, the detainee refuses to co operate if he is confident he has no reason to do so (e.g. they have absolutely no physical evidence to tie him to the crime, just hearsay, for example he was feuding with the victim). People who co operate, or attempt to pull off the facade of co operating, are generally either entirely innocent, unfamiliar with the workings of the legal system and reckon they know better than the cops and their own brief, or have been caught red handed and are trying to justify/ explain the reason they committed the offence.

Peregrinus

Innocent until proven guilty, burden of proof on the state, and the constitutional right not to be compelled to incriminate oneself, as others have pointed out.

But practitioners know that, if it comes to a jury trial, notwithstanding the direction from the judge a jury may draw certain inferences from the fact that the defendant does not give evidence in his own defence. So there's always a tactical question about whether it's wise to exercise the right not to give evidence. But often, despite the possiblity of an adverse inference being drawn, it is the wiser course.

C Montgomery Gurns II

Peregrinus wrote: »

Innocent until proven guilty, burden of proof on the state, and the constitutional right not to be compelled to incriminate oneself, as others have pointed out.

But practitioners know that, if it comes to a jury trial, notwithstanding the direction from the judge a jury may draw certain inferences from the fact that the defendant does not give evidence in his own defence. So there's always a tactical question about whether it's wise to exercise the right not to give evidence. But often, despite the possiblity of an adverse inference being drawn, it is the wiser course.

During jury selection, do they ask if you could give an open mind to a defendant who refused to explain any of his alleged or proven behavior, and subsequently be dismissed?

Fred Swanson

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Victor

Note that for various reasons, some people will be poor or bad witnesses. Someone who was intoxicated at the time of the events, someone prone to emotional outbursts, someone who is indifferent at the time of the case, someone who had animosity to the victim, etc. may be judged for those factors, not the evidence.

C Montgomery Gurns II wrote: »

During jury selection, do they ask if you could give an open mind to a defendant who refused to explain any of his alleged or proven behavior, and subsequently be dismissed?

I was called for jury service two years ago. From the jury waiting area, the potential jurors are shown video of the accused to see if they personally know them. Based on the charge, name, presentation and demeanour ("Is this person taking the case seriously?"), I found myself being judgmental of the various accused - "likely guilty", "I don't know, but seems to have a case to answer", etc. With the person I though "likely guilty", I was ready to recuse myself.

NUTLEY BOY

GM228 wrote: »

Unless statute requires you to answer.

Like the case of Saunders in the UK about 20 years ago ?

DTI inspectors investigating suspicious financial transactions involving Guinness PLC interviewed Saunders. He was informed by either the DTI inspectors or the police that refusal to answer questions was an offence under the relevant Companies Act(s). He was also told that the answers would be inadmissible as evidence in subsequent proceedings. Saunders was prosecuted. His answers were put in evidence. He was convicted.

Eventually, the European Court of Human Rights ruled that Saunder's rights had been breached but it was a split verdict. Link http://www.bailii.org/eu/cases/ECHR/1996/65.html

Victor

NUTLEY BOY wrote: »

Like the case of Saunders in the UK about 20 years ago ?

There are certain cases where alibis, etc. need to be claimed up front, not at trial.

GM228

NUTLEY BOY wrote: »

GM228 wrote: »

Unless statute requires you to answer.

Like the case of Saunders in the UK about 20 years ago ?

DTI inspectors investigating suspicious financial transactions involving Guinness PLC interviewed Saunders. He was informed by either the DTI inspectors or the police that refusal to answer questions was an offence under the relevant Companies Act(s). He was also told that the answers would be inadmissible as evidence in subsequent proceedings. Saunders was prosecuted. His answers were put in evidence. He was convicted.

Eventually, the European Court of Human Rights ruled that Saunder's rights had been breached but it was a split verdict. Link http://www.bailii.org/eu/cases/ECHR/1996/65.html

In Saunders didn’t the ECHR find that the prosecution had resorted to oppression or coercion in obtaining the evidence involuntarily and that led to a breach of Art 6(2) of the ECHR, to note in Murray vs United Kingdom [1996] 23 EHRR 29 (which came a few months before the Saunders case and later in Francis & O’Halloran vs United Kingdom [2008] 28 EHRR 21 the ECHR confirmed what O’Flaherty stated in the Heaney case (see below) that the right to silence is not absolute.

Take S52(1) of the Offences Against the State Act 1939, this provides that whenever a person is detained under Part IV of the Act, a full account of that person’s movements during a specified period and any information he/she may have relating to the commission of an offence under the Act or a scheduled offence by any other person may be demanded by a member of the Gardaí. Should the person fail to account for their movements or provide such information, in other words exercise a “right to silence”, then they are guilty of an offence. The constitutionality of that provision was challenged in both the High Court (Heaney & McGuinness vs Ireland [1994] 3 IR 593) and the Supreme Court (Heaney & McGuinness vs Ireland [1996] 1 IR 580). It was held that the right to silence was not absolute, it could be restricted by legislation under a proportionality test, where the encroachment constituted a proportionate interference in the right which was rationally connected to its objective and impaired the right to as little a degree as possible.

O Flaherty J wrote:

it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right – the right to silence

The Heaney case went as far as the ECHR (Heaney & McGuinness vs Ireland [2001] 33 EHRR 12), the ECHR found that S52(1) breached Article 6(1) of the European Charter of Human Rights. Problem is however that ECHR rulings are only persuasive, the Supreme Court however sets precedent.

Failure to comply with a legislative requirement to answer a question may go against the right to silence but is usually an offence simpliciter.
 

Victor wrote: »

There are certain cases where alibis, etc. need to be claimed up front, not at trial.

The general inference provision which does in effect limit the right to silence IMO. S19A of the Criminal Justice Act 1984 - where a person is arrested for an arrestable offence and fails to mention a fact that is later relied on in court as a defence the court may draw inferences from the fact that the accused failed to mention it when questioned, such inferences may amount to corroboration of other evidence but a person can’t obviously be convicted solely on the basis of such an inference.

 

I could probably keep going, but it's late and I’ll leave it at that.

 

Victor

O Flaherty J wrote:

it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right – the right to silence

I'm not sure I agree with this thinking, that freedom of expression is the opposite end of the scale of the right to silence in a criminal trial.

Some American judges have expressed parallel things quite differently, e.g. the right to bear arms is balanced by the right of everyone else to life and limb.

Fred Swanson

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Peregrinus

Fred Swanson wrote: »

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Six months (max).

GM228

Victor wrote: »

I'm not sure I agree with this thinking, that freedom of expression is the opposite end of the scale of the right to silence in a criminal trial.

That's how the Supreme Court held the old common law right to be a constitutional right under Article 40.6 as a corollary to the right of freedom of expression.

The High Court was of the opinion the right came from Article 38.1 - the right to a fair trial, but the Supreme Court thought otherwise.

The old common law right just like the constitutional right also was not absolute and capable of being restricted by legislation.

Peregrinus wrote: »

Fred Swanson wrote: »

What would be the punishment for keeping quiet in that situation?

Six months (max).

A little history but between 1931-1937 the punishment was potentially dealth for not disclosing information in certain circumstances, not sure if anybody was ever unfortunate enough to receive such a penalty for failing to disclose any information to Gardaí?

Peregrinus

GM228 wrote: »

A little history but between 1931-1937 the punishment was potentially dealth for not disclosing information in certain circumstances . . .

As a matter of interest, what was the statutory provision there?

GM228 wrote: »

. . . not sure if anybody was ever unfortunate enough to receive such a penalty for failing to disclose any information to Gardaí?

I'm pretty confident that nobody has been executed in Ireland since the end of the Civil War for any offence other than murder.

GM228

Peregrinus wrote: »

As a matter of interest, what was the statutory provision there?

S16 of the Schedule of the Constitution (Amendment No. 17) Act 1931.

http://www.irishstatutebook.ie/eli/1931/act/37/enacted/en/print.html

16.—(1) Whenever a person is in lawful detention in custody (otherwise than by way of detention on suspicion under this Article) in any prison, station of the Gárda Síochána, or other place, it shall be lawful for any member of the Gárda Síochána to enter such place, interview such person, and demand of him a full account of his movements and actions during any specified period and any information in his possession in relation to the commission or intended commission by another person of any of the offences mentioned in the Appendix to this Article.

(2) Every person who is interviewed by a member of the Garda Síochána under this section and—

(a) when an account of his movements or actions is demanded of him under this section at such interview by such member of the Gárda Síochána, fails or refuses to give such account or gives an account which is incomplete, false, or misleading; or

(b) when any information in his possession is demanded of him under this section at such interview by such member of the Gárda Síochána, fails or refuses to give such information or gives information which is false, incomplete, inaccurate, or misleading;

Shall be guilty of an offence triable by the Tribunal and shall be liable on conviction thereof to suffer such punishment as the Tribunal shall think proper to inflict.

And see S7(1):-

7.—(1) Whenever the Tribunal finds any person guilty of an offence mentioned in the Appendix to this Article the Tribunal may, in lieu of the punishment provided by law (other than this Article) for such offence, sentence such person to suffer any greater punishment (including the penalty of death) if in the opinion of the Tribunal such greater punishment is necessary or expedient.

As I said death was a potential sentence, would it be considered necessary or expediant though is another matter.

Peregrinus wrote: »

I'm pretty confident that nobody has been executed in Ireland since the end of the Civil War for any offence other than murder.

There were also executions for attempted murder.

That's not to say nobody ever received the sentence of death for such or other types of crimes but then had the sentence commuted to a prison sentence.