The Greatest Miscarriage of Justice - Right to Silence

Thanks for all of your comments on this series so far and to reiterate, the main aim for doing this series is to demonstrate a number of significant legal irregularities in the trial of Jesus. As some of you have noticed, I am doing this by attempting to fit the case of Jesus into the laws of criminal procedure in NSW (primarily because that’s what I am most familiar with), but it is also interesting to notice that there are many similarities between first century Judaic law and twenty-first century NSW law. Why that would be so is the topic of another series, but now to continue with today’s irregularity.

The right to silence is an often debated, often criticised and often misused principle of common law, but to use a cliché, it remains a bedrock of our society. It is not a privilege, it is not an optional extra, but it is a right – a right for any suspect of crime to stay silent in the face of questioning by a person in authority. But it does not stop there, the right extends in that at no later stage can adverse inferences be drawn against a person who has decided to remain silent, and it certainly can’t be used by a judge or a jury to infer that because an accused person failed to answer any questions or to give a police interview that therefore they must be guilty.

The current caution given to people in NSW after they have been told they are under arrest is as follows:

“You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”

Can you imagine the confusion if the last bit of the caution read: “but whatever you say or do, and even what you do not say or do not do may be used in evidence. Do you understand?”

Despite the simplicity and the importance of the principle, the most common opposition to the right to silence comes through the argument that if you have nothing to hide why not speak up and give your answers. Well put very crudely, Jesus had nothing to hide, and he remained virtually silent for both his religious and civil trial, and quite extraordinary inferences were drawn against him because of it. Furthermore, it was the very moment that he actually did say something that he was found guilty of blasphemy, and it was because of his lack of answers to Pontius Pilate that left him (Pilate) without any idea of what to do with him (Jesus).

There was also in Jewish law a further right against self-incrimination - a person could not be condemned on his own testimony but that fact had to be attested to by two other witnesses. While this latter aspect of Jewish law does not have an exact correspondence in NSW law, very rarely would a matter even get to the trial stage in NSW without some other corroborating evidence such as fingerprints, CCTV footage, DNA, or as suggested, the good old fashion way of other witnesses to attest to a person’s guilt, or at least some aspect of the case.

So once again, significant areas of criminal procedure done away with in the pursuit of a conviction against Jesus.