The privilege against self-incrimination
| Author | Hamish Stewart |
| DOI | 10.1177/1365712716628538 |
| Published date | 01 April 2016 |
| Date | 01 April 2016 |
Article
The privilege against
self-incrimination:
Reconsidering Redmayne’s
rethinking
Hamish Stewart
University of Toronto, Canada
Abstract
In ‘Rethinking the Privilege Against Self-Incrimination’, Mike Redmayne offered an ingenious pro-
posalthat both motivated theprivilege and explainedthe differencebetween statementsand other
forms of assistance. He connected the privilege with the idea that individual citizens should have
space todisassociate themselvesfrom a prosecution,particularly whereit would be very costly for
them and not particularly helpful to the prosecution, to assist.The many situations where the law
did require thecitizen to assist, on the other hand, were those where it was worth imposing the
costs of assistance on individuals. In what follows, I offer a critical reading ofthis account of self-
incrimination. I willsuggest that Redmaynehimself recognizedthe danger of relyingtoo heavily ona
certain kindof cost-benefit analysis. I suggest thatthe account could be strengthened by attending
more closely to the relationship between the privilege against self-incrimination and the rights of
the participants in the legal process, notably the presumptionof innocence.
Keywords
criminal process, presumption of innocence, privilege against self-incrimination,
proportionality, right to silence
Introduction
A persuasive rationale for the privilegeagainst self-incriminationiselusive. It is hard to explain why there
should be a blanket rule allowing suspects to refuse to provide statements that would assist in the
investigationof offences; but it is also hard to explain why the privilegefocuses on statements rather than
other kinds of compelled assistance suchas providing bodily samples. In ‘Rethinking the privilegeagainst
self-incrimination’ (2007)Mike Redmayne offered an ingenious proposalthat both motivated the privilege
and explainedthe difference between statements and other formsof assistance. He connected theprivilege
with the idea that individual citizensshould have space to disassociate themselves from a prosecution,
particularlywhere it would be very costlyfor them, and not particularlyhelpful to the prosecution,to assist.
Corresponding author:
Hamish Stewart, University of Toronto, 84 Queen’s Park, Toronto, Ontario, Canada M5S 2C5.
Email: hamish.stewart@utoronto.ca
The International Journalof
Evidence & Proof
2016, Vol. 20(2) 95–102
ªThe Author(s) 2016
Reprints and permissions:
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DOI: 10.1177/1365712716628538
epj.sagepub.com
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