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It is basic principle that the Police and Prosecution are the parties with the burden to prove the guilt of an accused person of committing a criminal offence. In many jurisdictions, the suspect is entitled to a right of non-self-incrimination, and the extent and application of this right against self-incrimination varies from jurisdiction to jurisdiction. These range from a prohibition against torture during suspect examination as in Indonesia, to rights that guarantee the suspect’s right to remain silent as regulated in the United States. This perspective briefly discusses how the right to remain silent especially in the United States is the modern provision to guarantee the right of non-self-incrimination.
Historical Overview of Non-Self-Incrimination
The term non-self-incrimination originated from the Latin adagium nemo tenetur prodere seipsum which means “no one is bound to bring forth (i.e., accuse) himself.”
This doctrine originated in the ius commune, the law applied in the European and English
ecclesiastical courts beginning in the 17th Century. Historically, tribunals namely the Star Chamber and Court of High Commission endorsed the practice of torture during interrogation and the suspect could be punished for refusing to testify. The Inquisitions and religious Courts used imprisonment, excommunication, exile, and physical torture to punish silence and to provoke suspects to confess to heresy and other crimes against the church and state. Those tribunals also used the oath ex officio that required the suspect to take an oath to God that they would respond truthfully to all questions.. Finally in 1640 the oath of ex officio was officially banned by statute to end the practice, and the Star Chamber and Court of High Commission were abolished in 1641.
Therefore, the main use for the nemo tenetur doctrine was to avoid torture from law enforcement to obtain incriminating testimony from the suspect.
According to John Langbein, over time, the character of non-self-incrimination changed, from original privilege not to accuse oneself to the modern privilege not to respond or to testify. There is an evolution from non-self-incrimination, at inception, to the present day, especially the modern American rule that gives the right to remain silent for the suspect.
The Right of Non-Self-Incrimination in the United States of America
The right of non-self-incrimination are regulated in (i) the US Constitution, specifically the Fifth Amendment of Bill of Rights; and (ii) Supreme Court decision in Miranda v. Arizona (1966).
The right of non-self-incrimination has been a US constitutional right since the 15th December 1791, with the ratification of the Fifth Amendment, which states: “no person shall be compelled in any criminal case to be a witness against himself”.
This Constitutional right was recognized in the landmark case of Miranda v. Arizona (1966) which resulted in the Miranda Rules. These Rules contained provisions that stated the suspect had the right to remain silent, and not to give evidence that could be used to incriminate them at trial. Because the right to remain silent is highly identified as guaranteeing the right of non-self-incrimination, in Black’s Law Dictionary both, have the same meaning.
The police must notify the suspect of their rights before the interrogation, known as the Miranda Warning, which essentially stated:
⦁ You have the right to remain silent.
⦁ Anything you say can and will be used against you in a court of law.
⦁ You have the right to an attorney.
⦁ If you cannot afford an attorney, one will be provided to you.
Do you understand these rights?
With these rights in mind, do you wish to speak to me?
These rules have entered into popular culture, being uttered in numerous television programs and films with most people all over the World being able to recite some portions of the Miranda rules through repeated exposure.
The Right of Non-Self-Incrimination in Indonesia
Indonesia does not have the right to remain silent provision. Instead, in the Indonesian Criminal Procedure Law (“KUHAP”) in particular Article 52 KUHAP and Article 117 KUHAP regulate the suspect’s right of freedom in testifying without pressure from anyone in any form. The existence of freedom in testifying means that the suspect can provide the most favourable information for him. Thus, it can be said those provisions regulate the right of non-self-incrimination. However, the Draft of KUHAP (“RKUHAP”) in Article 90 regulate that a suspect’s refusal to provide information in the investigation process is a right, and his refusal cannot be used as evidence of his guilt.
In conclusion, the provisions to guarantee the right of non-self-incrimination varies. However, the right to remain silent is considered a guarantee to prevent self-incrimination where suspects have not had the benefit of legal counsel while being investigated. It remains to be seen whether the future of draft KUHAP Article 90 will eventually take the shape, form and practice of the Miranda Rules in the US. (DBS)