The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo American case law

Author Constantine Theophilopoulos

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 137 Issue 2, p. 305-334


The right to silence is difficult to analyse in theory and practice as it has different applications at different stages of a criminal prosecution. The accused’s right to silence is also a manifestly modern right which has often been confused with its traditional English common-law ancestor, the witness privilege against self-incrimination. In order to explain the right to silence, this article begins by briefly setting out its libertarian jurisprudential foundations as a Hohfeldian immunity against compulsion and self-incrimination. The analysis is sourced from American and Canadian case law, as there is no South African case law on point. Thereafter, the evidentiary value of a right to silence is explained in utilitarian terms by critically examining the adverse inferences which may be drawn from silence as an item of circumstantial evidence at the pre-trial and trial stages of criminal proceedings. The evidentiary probative value of silence is analysed in its traditional common-law context as a bare rule of evidence, as well as in its modern constitutional context as an entrenched constitutional right. This critical evaluation is based on a rich vein of English, South African and other common-law and constitutional case precedent. Finally, this article suggests a possible five-legged model which may provide a consistent and coherent formula for determining the probative value of an accused’s invocation of silence in all factual circumstances.