The key witness for this case, Levandowski has "pleaded the Fifth" throughout this case, which is the protection afforded by the American constitution to not say anything that could incriminate oneself.
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But because prosecutors are at the same time prosecuting both women for their own alleged crimes, the women may be able to avoid being compelled to testify against Kraft because of the constitutional bar against being forced to incriminate oneself.
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Previously courts have held that statements made under statutory compulsion do not fall foul of the requirement that statements be free of undue influence.See, for example, R v Carson (which concerned an inquiry under the Insolvency Act). How does this fit in with right not to incriminate oneself in s 35(3)(j) of Constitution?Ferreira v Levin.
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Regarding the examination of the accused, the committee laid down minimum standards, such as respect for the right not to incriminate oneself and provisions that guarantee the physical and psychological integrity of the accused. The committee also made conclusions regarding trial in public for criminal cases and the right to appeals and remedies. Lastly, the committee concluded that the Rule of Law did not require any particular theory regarding punishment, but must necessarily condemn cruel, inhuman or excessive preventive measures or punishments and thus the committee supported the adoption of reformative measures wherever possible.
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The police searched Patane's house with his permission and found the gun. As a felon, Patane was not permitted to possess a gun and was prosecuted for possession. During the trial on gun possession charges, Patane argued that his arrest violated the Fourth Amendment prohibition of unreasonable searches and seizures and the Fifth Amendment right not to incriminate oneself because there was not probable cause to arrest him and because the gun had been found as a result of an un-Mirandized confession. The district court initially ruled that there was not probable cause for his arrest and that it was therefore unconstitutional.
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Under the bill, defendants are to be required to identify issues they intend to rely on in their case, e.g. the points in their charge that are in dispute and whether they propose to rely on expert evidence. Failure to do so could be interpreted as an indication of guilt. Finlayson notes that this a "novel step" in New Zealand and identifies a tension between this provision several rights enshrined in the Bill of Right's act: the right to silence, the right to a presumption of innocence, the right not to be compelled to give evidence or incriminate oneself and the right to a fair trial.
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The failure to grant access to counsel brought to light the practice of an informal process that could let offenders off with a warning or having them enter into diversion programs in lieu of being charged in court. But to be accepted into the informal process, offenders had to admit to guilt, which runs afoul of the right not to incriminate oneself in criminal proceedings. The investigation following Michael Brown's shooting found an enormous disparity in the way juvenile cases were handled, with blacks being 47% more likely than whites to be put through the formal criminal proceedings. It also found them more likely to be held in detention, and also subsequently sentenced to incarceration once the case was finished.
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But this was tempered by: "[the right to not self-incriminate] does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as , inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing." The court also stated that "[it was not making a judgement on] whether the right not to incriminate oneself is absolute or whether infringements of it may be justified in particular circumstances." One of the dissenting judges (Mr. S. K. Martens) pointed out that the court was, in effect, over-ruling the judgement made in Funke v.
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The "cruel trilemma" was an English ecclesiastical and judicial weapon developed in the first half of the 17th century, and used as a form of coercion and persecution. The format was a religious oath to tell the truth, imposed upon the accused prior to questioning. The accused, if guilty, would find themselves trapped between: # A breach of religious oath if they lied (taken extremely seriously in that era, a mortal sin), as well as perjury; # Self-incrimination if they told the truth; or # Contempt of court if they said nothing and were silent. Outcry over this process led to the foundation of the right to not incriminate oneself being established in common law and was the direct precursor of the right to silence and non-self-incrimination in the Fifth Amendment to the United States Constitution.
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In Latvia, the Criminal procedure law (Kriminālprocesa likums) (sections 60.2, 150, 265 and more) sets out a right for anyone against whom criminal proceedings has been initiated or suspicions raised to remain silent. Upon arrest and before first interrogation of a person against whom any (official or unofficial) suspicion has been raised in a criminal case, such person must be warned of his or her right to remain silent, and that everything such person says may be used against that person in a criminal proceedings. Witnesses, victims and persons whose property rights has been affected by criminal proceedings has a right not to incriminate oneself and his or her relatives and not to give any information that is directly or indirectly self-incriminating or may incriminate such persons' relatives. Refusal to testify or answer all or any questions on the basis of right against self-incrimination cannot be used against such person in any way or be used as evidence of guilt.
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