The Right to Remain Silent in a Criminal Proceeding: Vietnam and the US
The fundamental objective of a criminal proceeding is to achieve justice which includes conviction of the guilty. But it also involves protecting the accused who is guiltless. The guilty, too, have rights and protections before the law. There is some skepticism regarding confessions–they can be coerced and obtained by trickery and so may be unreliable. Thus, prosecutors, who bear the burden of proof, must establish guilt based on objective evidence and testimony. In the U.S., for example, the level of proof is “beyond a reasonable doubt.” In Vietnam the accused is deemed “innocent until proven guilty.” To protect both the innocent and the guilty from abuse by law enforcement authorities and to ensure the integrity of the judicial system, many jurisdictions grant an accused the right to remain silent. The U.S. and Vietnam recognize that the right to remain silent is pivotal to the integrity of its system even though each country’s approach is different.
Meaning, scope, and subject
The right of a suspect or an accused to remain silent in the U.S. is rooted in the Fifth Amendment of the Constitution which states that “no person… shall be compelled in any criminal case to be a witness against himself.” According to the U.S. Supreme Court, to be a witness means to testify. A person accused of a crime has a right to refuse to provide testimony that can be used against him, and he shall not be forced in any way to confess. This right encompasses details that directly lead to conviction and those that help to establish a link to a crime. The prosecution must prove guilt beyond reasonable doubt, and the accused has no duty to defend himself nor to assist to find the truth. He can remain silent, and his silence cannot be construed as evidence of guilt.
However, there are some exceptions. The right to remain silent only protects testimonial communications. Non-testimonial evidence, for example, fingerprints or DNA, may be used without violating the Fifth Amendment. Moreover, it is settled that the self-incrimination clause only applies to natural persons. Juridical persons, such as corporations, do not benefit from its protection.
Defendants and witnesses have the right to remain silent and some may do so if, for example, they believe their testimony would implicate them in the commission of a crime, even a crime that is not before the court. For defendants, it is an all-or-nothing right. By assuming the protection of the Fifth, the defendant exercises his right against self-incrimination throughout the proceedings. But if he takes the stand to testify, he waives his Fifth Amendment right forever, may no longer assert its protection, and is obliged to answer all questions put to him. If the defendant does not answer questions after waiving his rights or if he answers them untruthfully, he may be held in contempt of court or may be charged with perjury.
Unlike a defendant, witnesses are subpoenaed to testify and may, therefore, testify selectively. They can, for example, invoke the Fifth each time they are asked questions which may incriminate them. The Court has some discretion. Unless the questions implicate the witness in a crime, the judge may order him to answer the question if he tries to assert his Fifth Amendment protections.
Suspects who are questioned by the police also enjoy the right to remain silent and cannot be compelled to make a confession or even to reply to a question. When the police interrogate a person in custody, they are obligated to read to him his rights, one of which is to remain silent. These have come to be known as Miranda rights, named after a defendant in a case which established that failure to inform the suspect of his Miranda rights in custodial interrogation would result in a confession or indeed in any statement being inadmissible in court. Miranda rights are an expression of the Fifth Amendment right against self-incrimination. The U.S. Supreme Court reasoned that a police interrogation could be intense or violent, such that a suspect may be coerced to speak. Reading a suspect the Miranda warnings has become mandatory to make sure the suspect understands his constitutional rights not to speak. It is worth emphasizing that Miranda warnings do not create new rights for suspects. Instead their purpose is to assure that a suspect is aware of rights he already possesses under the Constitution and that “even the guilty are not to be convicted unless the prosecution ‘shoulders the entire load.’”
Invocation and waiver
To claim the right to remain silent, one must speak clearly to claim the right. Mere silence is simply insufficient and unclear, as the suspect might take time to think about his answer or try to remember the incident. Similarly, a waiver of the right is made if a suspect makes a verbal statement “voluntarily, knowingly, and intelligently” to waive his rights. That is, the invocation or the waiver of the right to remain silent cannot be inferred from silence itself. Verbal invocations of one’s Miranda rights may be found to be invalid if the invocation is equivocal. A statement such as “I’m not saying sh– to you no more, man” may be a display of anger and not an invocation of the right to remain silent. Therefore, a person must speak unambiguously to show his intention to claim or waive his rights.
Problems and solutions
Despite being a long-standing and thoroughly established criminal justice principle in the U.S., the right to remain silent encounters many problems when the Miranda warnings become nothing but a “dead symbol” as Professor Charles Weisselberg has put it. For example, it is questionable whether warnings are well understood by suspects especially when it comes to adolescents and mentally ill people. Waivers may be questioned where, for example, multiple versions of Miranda warnings have been given by police officers in such a way that suspects believe that their silence can be used against them or the form of the warning induces them to waive their rights. Other tactics used by the police involve designing a situation where they do not have to advise suspects of their rights. Therefore, reforms have been discussed to embrace the right to remain silent, for example, videotaping interrogations, requiring counsel to be present during interrogations to be able to consult with the suspect, and rewriting the Miranda warnings.
Laws and subject
Vietnam also recognizes the right to remain silent although the right is not as clear. The right is found scattered throughout the Constitution and the Criminal Procedure Code (CPC). For example, by establishing “innocence until proven guilty” as a principle under Article 31, the Constitution imposes the burden of proof on the prosecution. This means an accused is not required to defend himself. The new CPC promulgated in 2015 provides that “persons held in emergency custody or arrested persons… are entitled to… give statements and opinions, and have no obligation to testify against themselves.” The same applies to detainees, suspects, and defendants. They cannot be compelled to respond to any question and may opt simply to remain silent. The provision is understood and accepted as tantamount to the right to remain silent in criminal proceedings.
Furthermore, unlike the U.S. where corporations cannot claim their Fifth Amendment right to remain silent due to the “personal” nature of the right, Vietnam accords this right to juridical persons. Article 435 of the CPC allows the legal representative of a legal entity to remain silent and not to testify against the entity.
Invocation and consequence
Given the brevity of the right as stated in the CPC and with no judicial guidance, it is difficult to know whether a person must affirmatively claim the right to remain silent or whether simply remaining silent is sufficient. One remarkable case in Vietnam in 2017, followed the same standard as the U.S. in which a defendant verbally informed the court that she would remain silent while being questioned, because she did not believe in the evidence obtained by the prosecutors. At the time, her invocation of the right to remain silent sparked public comment. It was the first case in which a defendant publicly exercised this right after enactment of the new CPC. Many people, including prosecutors, thought that she exercised her right to silence because she had something to hide, and by choosing to remain silent, she had lost her chance to defend herself. The court upheld her right to remain silent. This ruling has set a pivotal precedent that silence cannot be used against a person in a court of law. Once again the prosecution is reminded that it has the burden to establish guilt.
Recommendations for improvement
To refine the system and avoid uncertainty, it is imperative that Vietnam enact a unified, comprehensive set of rules or guidelines with details on the right to remain silent in criminal proceedings. These rules or guidelines must address the protocol for law enforcement officials to inform and explain these rights. The rules or guidelines should clarify how a person can invoke or waive his right, for example, affirmatively by word or whether silence is sufficient. Videotaping and recording police interrogations are already provided for in the CPC as safeguards against coercion. The rules should make it clear that suspects as well as persons who have been charged are covered. In addition, more investment should be put into installing equipment and training officers to use these safeguards. Choosing the right to remain silent may be more effective if a right holder has been so advised by his attorney. It is thus essential to facilitate people’s right to counsel as well as their right to remain silent. Moreover, the CPC should confer the right to remain silent to witnesses. Witnesses can also be subject to coercion or threat from law enforcement officials to give testimony on the stand or in witness interviews. Witnesses’ statements may also be self-incriminatory if the witness is later prosecuted. As a result, a witness should also be given the right to remain silent to protect himself.
Vietnam and the US have similar concepts of the right to remain silent, but the U.S. regulatory framework is more detailed, perhaps because it acknowledged the right before Vietnam and it has had longer to develop. In the US, the right to remain silent is enjoyed by individuals who are involved in a criminal proceeding such as defendants, suspects, and witnesses, unless it is unambiguously waived. In the US, warnings have been created to make sure a suspect knows his constitutional rights and the right has become a symbol of American justice. However, many still perceive their rights poorly due to police tactics and poor understanding of the warnings. Meanwhile, Vietnam has newly adopted the right to remain silent and, as yet, there is little guidance or precedent. What constitutes an invocation or waiver of the right to remain silent or what type of evidence or testimony is protected is still developing. The criminal law should address and particularize these uncertainties to prevent people from holding false beliefs about the right to remain silent, and so ensure the exercise of justice.
 Charles G. Geyh, The Testimonial Component of the Right Against Self-Incrimination (1987), p. 612.
 Hoffman v. United States, 341 U.S. 479 (1951).
 Geyh, supra note 1.
 Constitution of the United States of America: Analysis and Interpretation: Fifth Amendment – Rights of Persons, p. 1305.
 Id. at 1308.
 Miranda v. Arizona, 384 U.S. 436 (1966).
 See supra note 4 at 1331.
 Tehan v. Shott, 382 U.S. 406 (1966).
 Berghuis v. Thompkins, 560 U.S. 370 (2010).
 People v. Jennings, 760 P.2d 482 (Cal. 1988).
 Charles Weisselberg & Stephanos Bibas, The Right to Remain Silent, 159 U. PA. L. Rev. (2010), p. 70.
 Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. (2009), pp. 7-9.
 Michael D. Cicchini, The New Miranda Warning, 65 SMU L. Rev. 911 (2012), pp. 920-922, 926-928.
 Article 58.1(d) CPC.
 Articles 59.2(c), 60.2(d), and 61.2(h) CPC.
 See supra note 4.