SAGE Journal Articles
Click on the following links. Please note these will open in a new window.
Abstract: In ‘Rethinking the Privilege Against Self-Incrimination’, Mike Redmayne offered an ingenious proposal that both motivated the privilege and explained the difference between statements and other forms of assistance. He connected the privilege with the idea that individual citizens should have space to disassociate themselves from a prosecution, particularly where it would be very costly for them and not particularly helpful to the prosecution, to assist. The many situations where the law did require the citizen to assist, on the other hand, were those where it was worth imposing the costs of assistance on individuals. In what follows, I offer a critical reading of this account of self-incrimination. I will suggest that Redmayne himself recognized the danger of relying too heavily on a certain kind of cost-benefit analysis. I suggest that the account could be strengthened by attending more closely to the relationship between the privilege against self-incrimination and the rights of the participants in the legal process, notably the presumption of innocence.
Abstract: Juries have the power to nullify, but not the right. As a result, judges do not instruct jurors on nullification. If jurors learn about this power, they can exercise it. However, if they indicate their intentions during deliberations, they can be removed from the jury. This state of affairs, in which the judge does not tell jurors of their full power and jurors have to be careful not to signal their intent to nullify, is harmful to the judge-jury relationship. If judges instructed jurors on their power, jurors would be fully informed and would be able to trust the judge.