« What Gordon Sees When He Closes His Eyes | Main | Hate the world competetiton »

Nemo tenetur seipsum accusare

Loophole on spouses' evidence to be closed - Scotsman.com News

HUSBANDS and wives will no longer be able to refuse to give evidence against each other in court, under a planned change to the law announced by Kenny MacAskill.
The justice secretary said he intends to repeal the legislation on so-called "spousal compellability" in a move that is intended to address fears that couples are exploiting the legal loophole to avoid jail sentences....

A quick glance and it seems like an outmoded loophole needing to be changed. The reason they are not allowed to give evidence for, or against, each other is: "partly because it is impossible their testimony should be indifferent, but principally because of the union of person; and therefore, if they were admitted to be witness for each other, they would contradict one maxim of law, "nemo in propria causa testis esse debet"; and if against each other, they would contradict another maxim, "nemo tenetur seipsum accusare." No one should be forced to give evidence against themselves." Of course we have lost that right now, having to hand over encryption keys, names of drivers etc. And as we see a further assault on this ancient protection yet again it is worth looking across the pond to the last great hope of freedom.

"The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688 and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the [384 U.S. 443] questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." Brown v. Walker, 161 U.S. 591, 596-597 (1896)

So the wheel turns and we return to the "inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system..."


Labour is a great hater of institutions, but perhaps none more than marriage.

Post a comment