Absence of confession
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Adverse Inferences
A court can draw an adverse inference from a defendant's silence in circumstances as set out in sections 34 to 37 Criminal Justice and Public Order Act 1994. Section 34 allows an inference to be drawn when a suspect is silent when questioned under caution prior to charge (section 34(1)(a)). An inference can also be drawn when a defendant is silent on charge (section 34(1)(b)). These subsections are distinct and the fact that no inference can be drawn from silence during questioning does not mean that no adverse inference can be drawn from silence on charge. In Dervish and Anori [2001] EWCA Crim. 2789, the trial judge had ruled that the defendants' no comment interviews were inadmissible, but had directed that the jury may draw an adverse inference from silence at charge in accordance with section 34(1)(b). At the Court of Appeal, the defendants had argued that this approach was wrong as the two limbs of section 34 were inextricably linked. The Court of Appeal rejected this argument and approved the judge's approach. There are two points that arise - (1) if faced with a situation of silence on charge and interview, you should remind the court of the potential drawing of adverse inference under both subsections, and; (2) if there is any doubt as to the admissibility of the interviews, you should be prepared to invite the court to draw an adverse inference under section 34(1)(b) if applicable. This guidance will concentrate on section 34, as it is under this provision that adverse inferences are almost always invariably drawn.
Inferences from silence
The term 'adverse inference' means the court is permitted to draw a negative conclusion from the defendant's silence when interviewed at the police station; in other words, the court may hold the defendant's silence against him. The usual inference that the jury or magistrates will draw is recent fabrication in that the defendant remained silent when interviewed by the police because he did not have an adequate explanation for his conduct and he has fabricated the facts that form his defence at trial after being charged by the police. Alternatively, the court may draw an inference that, even though the defendant did not fabricate his defence after leaving the police station, he did not put his defence forward when interviewed by the police because he did not believe it would stand up to further investigation by the police.
A primer for prosecution use of defendant's post-arrest, post-Miranda silence.
Accordingly, where the record indicates that a defendant's silence is attributable to an invocation of his Fifth Amendment privilege or a reliance on Miranda warnings, use of his silence is error. Id. at 202. In order to prevail on a claim of ineffective assistance of counsel, defendant must show that: (1) counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms at the time the representation took place, and (2) counsel's deficient performance prejudiced the defense such that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. People v Carbin, 463 Mich 590 (2001), quoting Strickland v Washington, 466 US 668 (1984).
Knowledge Graph
Examples
1 The Supreme Court has never addressed whether a defendant's silence prior to his receipt of Miranda warnings can be used against him.