WHAT ARE THE RIGHTS OF VICTIMS OF SELF-INCRIMINATION?

This Article is written by Khushi Damani, intern under Legal Vidhiya

QUOTE 

“The right against self-incrimination is a fundamental principle of justice that protects the innocent as well as the guilty, and we must be vigilant to ensure that this right is respected for all individuals, including victims.” – Louise Arbour, former United Nations High Commissioner for Human Rights.

INTRODUCTION

Victims of self-incrimination have the right to remain silent and not to provide testimony or evidence that could be used against them in a criminal proceeding. This right is protected by the Fifth Amendment of the United States Constitution, which states that no person shall be compelled to be a witness against themselves.

It’s important to note that this right only applies to criminal proceedings. In civil cases or administrative hearings, a person may be required to provide testimony or evidence, even if it could incriminate them. However, in criminal cases, the right to remain silent and avoid self-incrimination is a fundamental protection for all individuals.

BACKGROUND

• History

A Legal maxim “Nemo Tenetur Seipsum Accusare” which means that “No one is bound to accuse himself.” This is a fundamental principle in the legal system, which means that an individual cannot be forced to incriminate themselves or testify against themselves in a criminal trial. It is also known as the right against self-incrimination or the privilege against self-incrimination, and it is a basic right that is protected by law in many countries around the world. The right against self-incrimination, which allows individuals to refuse to testify against themselves in criminal proceedings, can be traced back to ancient Roman law. However, the modern concept of the right against self-incrimination has its roots in English common law. In the United States, the Fifth Amendment to the Constitution includes the protection against self-incrimination. However, the application of this principle to victims of crime has been more recent. In the past, victims were often treated as mere witnesses and could be compelled to testify, including against their own interests. In the 1960s and 1970s, there was a growing recognition that victims of crime had rights, including the right to refuse to incriminate themselves. This was particularly true in cases of domestic violence and sexual assault, where victims were often reluctant to come forward because they feared being charged with a crime or being stigmatized. This amendment was ratified in 1791 as part of the Bill of Rights. The right against self-incrimination was also included in the Universal Declaration of Human Rights in 1948 and in the International Covenant on Civil and Political Rights in 1966. In 1972, the Supreme Court of the United States recognized the rights of victims to refuse to incriminate themselves in the case of Leary v. United States. In that case, Timothy Leary was charged with possession of marijuana and claimed that the Fifth Amendment protected him from self-incrimination. The Supreme Court agreed, ruling that the government could not compel him to incriminate himself. Since then, the rights of victims of self-incrimination have continued to evolve. Many states have enacted laws to protect victims from being compelled to testify against themselves in cases of domestic violence and sexual assault. Additionally, the Victims’ Rights and Restitution Act of 1990 recognized the rights of crime victims, including the right to refuse to incriminate themselves. In other countries, the right against self-incrimination may have been introduced at different times and through different legal instruments. However, the exact timeline and specifics may vary depending on the country and legal system. There are around 108 nations and authorities that presently publish legal warnings to suspects, which involve the prerogative to remain silent and the prerogative to legal counsel. These laws aren’t uniform across the world; still, members of the European Union have developed their laws around the EU’s guide. Overall, the history of the rights of victims of self-incrimination has been a gradual evolution, reflecting changing attitudes towards the role of victims in the criminal justice system. Today, victims are recognized as having important rights and protections, including the right to refuse to incriminate themselves.

• Right against self-incrimination in countries around the world 

U.S.A Law: 

The Fifth Amendment of the United States Constitution protects individuals from being forced to incriminate themselves, and it is commonly referred to as the right against self-incrimination. The following are some of the key rights that protect individuals against self-incrimination in the United States:

1. The right to remain silent: This right allows individuals to refuse to answer any questions that may incriminate them, whether they are being interrogated by law enforcement or being questioned in court.
2. The right to an attorney: Individuals have the right to an attorney during any police questioning or court proceeding. An attorney can help ensure that the individual’s rights are protected and that they do not incriminate themselves.
3. The right to plead the Fifth: In any criminal trial, individuals have the right to refuse to answer any questions that may incriminate them by pleading the Fifth Amendment. This means that they can choose not to testify against themselves.
4. The right to a fair trial: The Constitution guarantees individuals the right to a fair trial, which includes the right to present evidence and witnesses in their defence. This right protects individuals from being convicted based on coerced confessions or other forms of self-incrimination.

These rights apply to anyone accused of a crime, whether they are a U.S. citizen or not. It is important to note that these rights may vary slightly depending on the jurisdiction and the specific circumstances of the case.

Britain Law:

The right against self-incrimination is not explicitly provided for in the laws of the United Kingdom. However, there are certain legal principles and safeguards in place to ensure that an individual is not compelled to provide evidence that may incriminate them. In criminal proceedings, the prosecution has the burden of proving the guilt of the accused beyond reasonable doubt. The accused is under no obligation to prove their innocence or to provide any evidence that may incriminate them. The principle of “innocent until proven guilty” also applies in the UK, which means that the accused is presumed innocent until the prosecution proves their guilt. The Police and Criminal Evidence Act 1984 (PACE) provides certain safeguards during police investigations, including the right to remain silent and the right to legal advice. Under PACE, the police must caution the suspect before questioning them, and any statement made by the suspect must be voluntary and not obtained by oppression, threat, or promise. However, if a suspect chooses to remain silent during 

police questioning or refuses to provide evidence, the court may draw an adverse inference against them. This means that the court may take the silence or refusal into consideration when determining guilt or innocence. In summary, while the right against self-incrimination is not explicitly provided for in UK law, there are certain legal principles and safeguards in place to ensure that the accused is not compelled to provide evidence that may incriminate them.

Indian Law:

In India, the right against self-incrimination is a fundamental right guaranteed by the Constitution of India under Article 20(3). This means that no person accused of an offense shall be compelled to be a witness against himself/herself. However, this right is not absolute and can be subject to certain limitations. For instance, a person can be compelled to give his/her fingerprints, voice samples, or other bodily fluids for the purposes of investigation. Additionally, in some cases, a court can grant immunity to a witness, which means that their testimony cannot be used against them in any criminal proceedings. The Code of Criminal Procedure, 1973 provides certain provisions that protect the rights of victims. For example, Section 164 of the Code allows for the recording of a victim’s statement before a magistrate, which can be used as evidence during the trial. The Victim Compensation Scheme, introduced in 2018, provides for compensation to victims of certain crimes, including rape, acid attacks, and human trafficking. In summary, while the right against self-incrimination is a fundamental right in India, it is not an absolute right and can be subject to certain limitations. Additionally, the Indian legal system has provisions in place to protect the rights of victims of crime.

What are the ingredients of Article 20(3) 

Article 20(3) of the Constitution of India provides the right against self-incrimination. The following are the key ingredients of this provision:

1. Privilege against self-incrimination: Article 20(3) provides the accused with the privilege against self-incrimination, which means that the accused cannot be forced to be a witness against themselves.
2. Applies to criminal cases only: The right against self-incrimination is applicable only in criminal cases and not in civil cases or other proceedings.
3. Accused as a witness: The accused has the right to remain silent and cannot be compelled to testify against themselves as a witness.
4. Protection against testimonial compulsion: The accused cannot be forced to provide any information that may incriminate them, including statements made under duress, threats, or coercion.
5. Protection against torture or inhumane treatment: The accused cannot be compelled to confess to a crime by force, torture, or any other inhumane treatment.
6. Applicable during the trial: The right against self-incrimination is applicable during the trial and not just at the time of arrest or interrogation.

Overall, Article 20(3) is an essential safeguard to protect the rights of the accused in criminal proceedings and ensure that they are not compelled to provide evidence that may incriminate them.

ISSUE OR THE TOPIC 

The right against self-incrimination is a fundamental principle of criminal law, and it is enshrined in many legal systems around the world. This right protects individuals from being forced to provide evidence or testimony that could incriminate themselves in a criminal case.

However, there are certain issues related to the rights of victims of self-incrimination. For example:

Compelling a victim to testify: In some cases, the prosecution may want to call a victim as a witness in a criminal trial. However, if the victim believes that their testimony could incriminate themselves, they may refuse to testify. In such cases, the prosecution may seek to compel the victim to testify, which could raise issues related to the right against self-incrimination. In case of Kathi Kalu, it was held that it must be inescapably shown that the testament was impelled to make a statement likely to criminate him. Compulsion is an integral element but if a person makes a confession without any persuading, trouble or pledge Article 20(3) doesn’t apply. The indicted may waive his right against self- incrimination by freely making an oral statement or producing factual substantiation, incriminatory in nature. More few cases like Amrit Singh v. State of Punjab. Divorce proceedings based on adultery were ongoing in the Delhi High Court in the intriguing case of X v. Y. The preserved foetus’ paternity was verified by the court because it was no longer a part of the wife’s body. The right against self-incrimination does not apply to searches and seizures of documents or other items carried out pursuant to a search warrant, hence she was not subjected to coercion.

Confidentiality of victim statements: Victims of crime may provide statements to law enforcement officials as part of an investigation. These statements may contain information that could incriminate the victim. As such, there may be concerns about the confidentiality of these statements and whether they could be used against the victim in a criminal case.

Plea bargaining: In some cases, victims of crime may be offered plea bargains in exchange for their testimony or cooperation with the prosecution. However, if the victim believes that their testimony could incriminate themselves, they may be reluctant to participate in such arrangements.

Immunity agreements: In some cases, prosecutors may offer immunity agreements to victims of crime in exchange for their testimony. However, such agreements can be complex and may raise concerns about the scope of the immunity provided and whether it adequately protects the victim’s rights against self-incrimination.

In general, the rights of victims of self-incrimination must be carefully balanced against the interests of the state in prosecuting crimes and protecting society. Courts must carefully consider the circumstances of each case to ensure that the rights of all parties are respected and protected.

Narco-Analysis Test vis-à-vis Self Incrimination 

Narco analysis test is a type of interrogation technique in which the subject is given a sedative or a truth serum to induce a hypnotic state, during which they are questioned to obtain information. In India, the use of narco analysis tests has been a subject of debate due to concerns regarding its impact on the right against self-incrimination. The Supreme Court of India has held that the use of narco analysis tests violates the right against self-incrimination, which is guaranteed under Article 20(3) of the Constitution of India. The reason for this is that narco analysis tests compel the subject to make statements that they may not have made voluntarily, which can potentially incriminate them. This violates the principle that an accused person cannot be forced to provide evidence that may incriminate them. Furthermore, the use of narco analysis tests raises concerns regarding the reliability and admissibility of the evidence obtained through such means. The subject may be susceptible to suggestibility or false memories, leading to unreliable or false information. In light of these concerns, the use of narco analysis tests has been largely discouraged in India. The Supreme Court has held that any statement made during a narco analysis test is not admissible as evidence in court.

DNA test and Self Incrimination 

DNA testing is a scientific technique that is used to analyse an individual’s DNA sample for the purpose of identifying or verifying their identity, parentage, or genetic information. In some cases, DNA testing may also be used as evidence in criminal proceedings. The use of DNA testing in criminal cases raises questions regarding the right against self-incrimination. An accused person may be required to provide a DNA sample, such as a blood or saliva sample, which could potentially incriminate them if the DNA evidence matches with the crime scene evidence. In some jurisdictions, the use of DNA testing is subject to certain legal safeguards to protect the right against self-incrimination. For example, in the United States, the Fifth Amendment to the Constitution provides protection against self-incrimination, and the Supreme Court has held that the collection of DNA samples may constitute a form of self-incrimination. However, the Supreme Court has also held that the collection of DNA samples from an accused person is permissible under certain circumstances, such as when there is probable cause to believe that the accused has committed a crime, and when the collection of DNA evidence is reasonable and necessary for the investigation. In general, the use of DNA testing in criminal proceedings is subject to legal and ethical considerations to ensure that the right against self-incrimination is protected, while also allowing for the use of scientific evidence to assist in the investigation and prosecution of crimes.

STATUTE AND CASE LAWS 

• Major cases related to self-incrimination in United states 

There have been several significant cases in the United States related to the right against self-incrimination. Here are a few examples:

1. Miranda v. Arizona (1966): In this landmark case, the Supreme Court held that individuals must be informed of their right against self-incrimination and their right to an attorney before being questioned by law enforcement while in police custody. This led to the creation of the “Miranda warning,” which police officers must provide to suspects before questioning.
2. Salinas v. Texas (2013): In this case, the Supreme Court held that silence alone cannot be used as evidence of guilt, unless the suspect explicitly invokes their right against self-incrimination. This decision narrowed the scope of the right against self-incrimination, as suspects must now explicitly invoke their rights in order for them to be protected.
3. Kastigar v. United States (1972): In this case, the Supreme Court held that prosecutors must prove that any evidence they use in a case against a defendant was obtained independently of any immunized testimony the defendant may have provided. This decision was significant in protecting defendants who cooperate with law enforcement, as it ensures that their testimony cannot be used against them.
4. Hiibel v. Sixth Judicial District Court of Nevada (2004): In this case, the Supreme Court held that individuals can be required to provide their name to law enforcement officers during a Terry stop, even if doing so may incriminate them. This decision limited the scope of the right against self-incrimination, as individuals can be compelled to provide certain information in some circumstances.

These cases illustrate some of the key issues and limitations surrounding the right against self-incrimination in the United States.

• Major cases related to self-incrimination in India.

In India, the right against self-incrimination is protected under Article 20(3) of the Constitution. Here are a few significant cases related to self-incrimination in India:

1. Nandini Satpathy v. P.L. Dani (1978): In this case, the Supreme Court held that the right against self-incrimination applies not only to accused persons, but also to witnesses who may incriminate themselves through their testimony. The court also held that the right against self-incrimination is a fundamental right that cannot be waived.
2. Selvi v. State of Karnataka (2010): In this case, the Supreme Court held that the use of narcoanalysis, brain mapping and similar techniques during interrogation violates the right against self-incrimination. The court held that these techniques are coercive and can force a person to reveal information that may incriminate them.
3. State of Bombay v. Kathi Kalu Oghad (1962): In this case, the Supreme Court held that a confession obtained through police coercion or torture violates the right against self-incrimination. The court held that any evidence obtained through such means is inadmissible in court.
4. State of Rajasthan v. Shambhu Kewat (2014): In this case, the Supreme Court held that the right against self-incrimination extends to both oral and written statements. The court held that any statement made by an accused person that is not voluntary, but instead made under pressure or coercion, is inadmissible in court.

These cases demonstrate the importance of the right against self-incrimination in India and how it has been applied in various contexts.

• Major cases related to self-incrimination all over the world 

Self-incrimination is the act of exposing oneself to an accusation or charge of a crime or to evidence that may lead to one’s own conviction. It is a fundamental principle of criminal law that a person should not be compelled to incriminate themselves. Here are some major cases and laws related to self-incrimination from around the world:

1. United States: The Fifth Amendment of the United States Constitution protects citizens against self-incrimination. The landmark case of Miranda v. Arizona (1966) established that law enforcement officers must inform suspects of their Miranda rights, including the right to remain silent, before questioning them.
2. Canada: The Canadian Charter of Rights and Freedoms guarantees the right against self-incrimination under Section 13. In the case of R. v. White (1999), the Supreme Court of Canada held that suspects have the right to remain silent, and that their silence cannot be used as evidence against them.
3. United Kingdom: The right against self-incrimination is protected under the common law in the United Kingdom. The case of R. v. Director of Serious Fraud Office (2018) established that compulsory interviews of suspects under threat of imprisonment violate the privilege against self-incrimination.
4. European Union: The European Convention on Human Rights guarantees the right against self-incrimination under Article 6(1). In the case of Saunders v. United Kingdom (1996), the European Court of Human Rights held that the privilege against self-incrimination applies not only to the accused, but also to witnesses and other persons.
5. India: The Constitution of India provides protection against self-incrimination under Article 20(3). In the case of State of Bombay v. Kathi Kalu Oghad (1962), the Supreme Court of India held that a person cannot be compelled to be a witness against themselves.
6. Australia: The right against self-incrimination is protected under common law in Australia. The case of Sankey v. Whitlam (1978) established that the privilege against self-incrimination is a fundamental common law right.
7. South Africa: The Constitution of South Africa guarantees the right against self-incrimination under Section 35(3)(h). In the case of S v. Zuma (2005), the Constitutional Court of South Africa held that the right against self-incrimination is a fundamental human right that is protected under the Constitution.

These are just a few examples of the major cases and laws related to self-incrimination from around the world. Many other countries have similar provisions in their legal systems, and the right against self-incrimination is widely recognized as a fundamental human right.

CONCLUSION 

In conclusion, self-incrimination is a fundamental principle of criminal law that protects individuals from being compelled to provide evidence against themselves in criminal cases. It is recognized as a fundamental human right in many countries around the world, and is often protected by constitutional or legal provisions. The right against self-incrimination is crucial to ensuring that individuals are treated fairly and justly in the criminal justice system. However, issues related to self-incrimination can arise, such as coerced confessions, lack of legal representation, and abusive interrogation tactics. To address these issues, governments can provide individuals with the right to remain silent, access to legal representation, limits on interrogation tactics, immunity or leniency, or constitutional or legislative reform. Ultimately, protecting the right against self-incrimination is essential to upholding the principles of fairness, justice, and human rights in criminal cases.