In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person. In many legal systems, accused criminals cannot be compelled to incriminate themselves—they may choose to speak to police or other authorities, but they cannot be punished for refusing to do so. There are 108 countries and jurisdictions that currently issue legal warnings to suspects, which include the right to remain silent. These laws are not uniform across the world; however, members of the European Union have developed their laws around the EU's guide.
History How the privilege of self-incrimination came to be established in the common law continues to be debated by legal historians. The most influential account of the common law origins of the privilege against self-incrimination is Leonard Levy's Origins of the Fifth Amendment:
It was in its origins, unquestionably the invention of those who were guilty of religious crimes...and, later, of political crimes...more often than not, the offense was merely criticism of the government, its policies, or its officers. The right was associated then with guilty for crimes of conscience, of belief, and of association. In the broadest sense it was a protection not of the guilty, or of the innocent, but of the freedom of expression, of political liberty, of the right to worship as one pleased. Levy argued that the privilege had ancient common law roots, whereas Wigmore said the privilege developed later, in the 17th century, to protect religious dissidents from inquisitorial oaths. Richard H. Helmholz has written that the privilege developed in other courts. Levy explicitly connected the privilege of self-incrimination to the common law's prohibition of coerced confessions. There has been substantial opposition to extending the privilege to modern police investigations. The expansion of the principle to ahistoric contexts was harshly criticized by Edward Corwin and Harvard Law School dean Roscoe Pound.
By country
Australia
A limited right against self-incrimination exists at common law in Australia, but is not protected by the federal constitution or at state level where the majority of criminal law prosecutions take place. In Sorby v Commonwealth (1983), the High Court affirmed that the common-law privilege against self-incrimination could only be abrogated by explicit statutory provisions. A number of federal statutes require individuals to provide truthful answers to questions posed by government agencies – including the Australian Crime Commission, Australian Competition & Consumer Commission, Australian Security Intelligence Organisation and Australian Securities & Investments Commission – and provide no exemption for self-incriminatory statements.
Canada In Canada, similar rights exist pursuant to the Charter of Rights and Freedoms. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c) states:
Any person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence ... An important caveat in Canadian law is that this does not apply to a person who is not charged in the case in question. A person issued a subpoena, who is not charged in respect of the offence being considered, must give testimony. However, this testimony cannot later be used against the person in another case, as Section 13 of the Charter states:
A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. Historically, in Canadian common law, witnesses could refuse to give testimony that would self-incriminate. However, section 5(1) of the Canada Evidence Act eliminated that absolute common law privilege by instead compelling witnesses to testify. In exchange, section 5(2) of the same act granted the witnesses immunity from having that evidence used against them in the future except in the case of perjury or impeachment. While these provisions of the Canada Evidence Act are still operational, they have been overtaken in their application by the immunities granted by sections 13 and 7 of the Canadian Charter of Rights and Freedoms.
China
After the 1996 amendments to the Criminal Procedure Law, Article 15 states that "It shall be strictly prohibited to extort confessions by torture, gather evidence by threat, enticement, deceit, or other illegal means, or force anyone to commit self-incrimination." In 2012 the law was also re-amended to strengthen the human rights protection of criminal suspects. China has since recognized the right against self-incrimination and forced confessions are prohibited by law. However, in practice as human rights violations in China continue to be committed, it is still common practice for police to use torture on suspects to obtain forced confessions. China's accession to the United Nations's International Covenant on Civil and Political Rights in 1998 also guarantees Chinese citizens the right against self-incrimination; however, China has not ratified the treaty.
India
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