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- Title
Let the Facts Speak for Themselves: The Empiricist Origins of the Right to Remain Silent.
- Authors
HELFIELD, RANDA
- Abstract
Historians have traced the right to silence to early canon law, the political conflicts of the sixteenth and seventeenth centuries, and even The Prisoner's Counsel Act, which effectively silenced the accused by allowing his lawyer to speak for him. This article argues that changes in philosophical notions of truth best explain how, given the importance of the accused's testimony at the altercation trial, her silence could ever have been tolerated and ultimately enforced as a right. By the mid-eighteenth century, the rise of empiricism had shifted the trial's reliance on testimony to a preference for facts, which seemed more immediately verifiable. Once the accused was no longer seen as the most important evidentiary resource, he could be silenced and his lawyer could speak for him without compromising his verdict. Thus the right to counsel did not create the right to silence; rather, the rise of empiricism enabled the creation of both.
- Subjects
SELF-incrimination; CANON law; LEGAL rights; EMPIRICISM; JUSTICE administration -- History; NINETEENTH century; ACTIONS &; defenses (Law)
- Publication
Osgoode Hall Law Journal, 2017, Vol 54, Issue 3, p877
- ISSN
0030-6185
- Publication type
Article
- DOI
10.60082/2817-5069.3161