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How Silent is the Right to Silence?

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

23 Pages Posted: 9 Jul 2013  

Katherine Biber

University of Technology Sydney, Faculty of Law

Date Written: December 1, 2012


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.

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

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:

Katherine Biber (Contact Author)

University of Technology Sydney, Faculty of Law ( email )


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