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Let The Facts Speak For Themselves: The Empiricist Origins Of The Right To Remain Silent, Randa Helfield

Osgoode Hall Law Journal

Historians have traced the right to silence to early canon law, the political conflicts of the sixteenth and seventeenth centuries, and even The Prisoner’s Counsel Act, which effectively silenced the accused by allowing his lawyer to speak for him. This article argues that changes in philosophical notions of truth best explain how, given the importance of the accused’s testimony at the altercation trial, her silence could ever have been tolerated and ultimately enforced as a right. By the mid-eighteenth century, the rise of empiricism had shifted the trial’s reliance on testimony to a preference for facts, which seemed more immediately …