Abstract

http://ssrn.com/abstract=2291295
 


 



How Silent is the Right to Silence?


Katherine Biber


University of Technology Sydney, Faculty of Law

December 1, 2012

Cultural Studies Review (2012) 18(3): 148-170

Abstract:     
This article examines the Australian jurisprudence of silence in the context of the ‘right to silence’ claimed by some criminal defendants during trial, and advances the position that, despite arduous effort to describe, classify, evaluate and protect silence, the law makes a lot of noise about a silence that isn’t really there. But a re‐examination of Weissensteiner illustrates what is evident in so much of the case law: in criminal enterprises and in criminal procedure, speech and silence exist on a spectrum, and in shifting contexts. There are times when silence is impossible, and times where it is irresistible. The law is rarely sensitive to the contexts in which silence falls and those in which silence is broken. This article contributes to the emerging jurisprudence of silence. It argues that silence must be heard and interpreted, and it calls for silence to be distinguished from noise, sound, utterance and inadmissible speech.

Number of Pages in PDF File: 23

Keywords: right to silence, law and literature, Weissensteiner, Kafka, evidence

Accepted Paper Series





Download This Paper

Date posted: July 9, 2013  

Suggested Citation

Biber, Katherine, How Silent is the Right to Silence? (December 1, 2012). Cultural Studies Review (2012) 18(3): 148-170. Available at SSRN: http://ssrn.com/abstract=2291295

Contact Information

Katherine Biber (Contact Author)
University of Technology Sydney, Faculty of Law ( email )
Sydney
Australia

Feedback to SSRN


Paper statistics
Abstract Views: 162
Downloads: 29

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.235 seconds