John Kahn 12 Nov 2020
The police can request to interview a suspect. The suspect must acknowledge in the police interview that it is voluntary and that they understand they have the right to silence. This is because everything said can be used as evidence, and later in court it may be used to the suspect’s detriment. The right to silence cannot be exercised if the police ask for the suspect’s name, address and birth date. If a suspect does not answer the questions for this information it could be grounds for prosecution.
To maintain the validity of the evidence from a police investigation, the police must follow proper procedure and not violate the suspect’s rights. If proper protocol is not adhered to, the evidence from the interview may not be used later in court.
A suspect has the constitutional right to not have their own words used against them. If a suspect does not want to answer a question, they should reply with “I would like to exercise my right to silence” or “No comment”. Even if the suspect’s case goes to trial, the judge or jury cannot consider the right to silence negatively in their verdict. Legally, it cannot be concluded that the right to silence signifies “the suspect must not want to answer the question to hide the truth” or “the suspect is lying”. The right to silence is a crucial constitutional right to the individual.
The police must inform the suspect before conducting an interview that “You have the right to remain silent and anything you say may be used as evidence”. Any confession from a suspect prior to the police having formally given this caution may not be used in court. This is like the Miranda Rights often proclaimed in Hollywood movies, except in Australia, the police do not have to say “You have the right to a lawyer”.
Any confession made in the interview must be made voluntarily, otherwise it may not be used in court. The police may not threaten, blackmail, torture or suggest that if the suspect confesses they will be given a lighter sentence or other benefits.
There are also other rights to the suspect as a part of this process. The suspect has a right to an interpreter and may not be questioned if drunk, intoxicated by drugs or in pain. If the suspect is a minor , their guardian must be present for a police interview to be done. All this is to protect the rights of the suspect.
A suspect’s assumption that cooperating with police by answering all their questions will somehow benefit them is faulty. Consenting to a police interview without having a lawyer present will almost never be of benefit to the suspect. Even if the police say something along the lines of “I would just like to hear your opinion”, their intentions must be questioned since the police are almost definitely seeking to achieve a quick confession from the suspect. Therefore, it is best to contact a lawyer immediately and, in the meantime, to exercise the right to silence.