The defendant’s silence and criminal evidence: Epistemic and constitutional limits to its assessment

Abstract

Most countries constitutionally prohibit compelling a person to testify against themselves. Although this prohibition prevents statements from being obtained through coercion, it does not preclude the exercise of this right from having adverse consequences, such as the evidentiary assessment of silence. The aim of this article is to argue that the exercise of this right, as recognized in the constitutions of Argentina and Chile, as well as in the principal international human rights treaties, requires courts to refrain from treating silence as evidence in criminal proceedings. Two positions supporting the evidentiary assessment of the accused’s silence are examined. The first regards silence as an autonomous item of evidence (“Full Proof ”), whereas the second considers it corroborative of other evidence (“Complementary Inference Evidence”). It is argued that attributing any evidentiary value to silence is erroneous because it lacks epistemic support and is incompatible with the constitutional prohibition against self-incrimination. The article concludes with brief reflections arguing that the accused’s silence is evidentially neutral and that its incriminating use is contrary to the nemo tenetur principle and the presumption of innocence.