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The introduction of IoT data in court without the consideration of its impact on the privilege against self-incrimination leads to the restriction of this fundamental right of the accused, who sometimes has no real choice to decide for or against the use of their IoT data due to various economic, social and health reasons. This article presents the point of friction between digital evidence and the privilege against self-incrimination and its evolution over the years in Germany and the United States, highlighting the increasing introduction of IoT evidence in court. It then identifies the various reasons why IoT are adopted by users. Finally, this article emphasizes that technical solutions cannot fully contribute to the resolution of the conflict between the privilege against self-incrimination and the use of IoT data as evidence in court. A real solution to the problem can only be achieved by the legislature and corresponding adjustments to existing rules of criminal procedure. [ABSTRACT FROM AUTHOR]

The article discusses the proposed "Hillsborough Law" by the UK Labour Government, aiming to introduce a duty of candor for public servants and authorities to address defensive cultures in the public sector. The law is inspired by the failures of public bodies to disclose information in investigations following the Hillsborough disaster. The proposed law includes specific duties for public authorities and officials to assist court proceedings, inquiries, and investigations, with criminal sanctions for non-compliance. The article raises questions about the scope of reform, who should be subject to the duty, and the cost of progress in implementing such legislation. [Extracted from the article]

Copyright of Question (1669-6581) is the property of Universidad Nacional de La Plata and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The right to remain silent is a fundamental procedural safeguard for people accused of a criminal offense. Practitioners draw conclusions from the fact that a defendant makes use of the right to silence. Conversely, we know little about defendants’ perspective of the right to silence and their understanding of the possible risks involved in invoking this right. It was the aim of the current study to provide insights on defendants’ decision to remain silent and the reactions and consequences they experienced. We conducted four focus group interviews with 29 prisoners who served a prison sentence for a serious crime of at least three years in the Netherlands or Belgium. Overall, prisoners were in favor of remaining silent and recommended remaining silent over the full duration of their investigation and trial, or at least the pre-trial stage. The presence of co-suspects, attitudes towards police, and perception of evidence strength played an important role in the decision to remain silent. Legal assistance informed prisoners’ strategy decisions, especially for first offenders. When interpreting the findings it is important to consider that interviewees were mostly convicted of serious multiple perpetrator crimes. This might have contributed to the strong emphasis on silence as preferred strategy. [ABSTRACT FROM AUTHOR]

Copyright of Derecho Penal y Criminologia is the property of Universidad Externado de Colombia, Departamento de Derecho Penal y Criminologia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Angle Health Law Review is the property of Angle Publishing Co., Ltd. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista CES Derecho is the property of Universidad CES and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article discusses recent developments in European administrative law, specifically focusing on the Court of Justice's extension of its case law regarding administrative penalties of a criminal nature. The Court applies three criteria to determine whether a penalty qualifies as criminal, including the qualification of the offense under national law, the nature of the offense, and the severity of the sanction. The article also examines the Court's approach to penalties labeled as criminal and the potential drawbacks of leaving the final qualification of the sanction to the referring court. Additionally, the article includes several other contributions discussing topics such as the principle of ne bis in idem, the quasi-judicial role of national competent authorities, and the challenges faced by regulatory authorities in the Dutch railway sector. [Extracted from the article]

Whether we realize it or not, our smartphones/tablets store an extremely rich amount of information about ourselves, our daily activities, secrets, preferences, and plans. To talk about professional or purely private matters, we use communicators. For this data, modern technology gives us a sense of security. We are reassured by encryption based on alphanumeric codes. But remembering passwords that are too complex is inconvenient. That's why we often use biometric security - fingerprint readers or facial recognition. Not only for the unlocking of the device, but also for the effective use of many applications (e.g. mobile banking). But evidence of a crime could be a file, document, photo or conversation stored only on our device. Our crime. If law enforcement demands that we unlock the device, what should we do? Looking at modern legal solutions in this area, the international standard of not incriminating oneself is clear - we cannot be forced to reveal information stored only in memory (e.g. passcode). However, when it comes to whether we are required to place our thumb on a reader or look into a Face ID camera, the law is silent or extremely inconsistent. Paradoxically, the technology that makes our data more secure seems to have the opposite effect of diminishing our fundamental rights as potential suspects. The most troubling threads in this area will be addressed in this paper. Where do we stand? What's next for our fair trial rights? [ABSTRACT FROM AUTHOR]

The article focuses on the impeachment trial of Texas Attorney General Warren Kenneth Paxton, Jr., detailing the intricate procedural rules established by the Senate, the constitutional and procedural arguments made during the trial, and the challenges faced. Topics include the formulation and adoption of trial rules by the Senate Select Committee, the legal arguments surrounding due process and self-incrimination, and the eventual acquittal of Paxton following extensive trial proceedings.

This Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that a violation of Miranda was not a violation of the Fifth Amendment privilege against self-incrimination. This Article examines the original language of the Miranda opinion, the statements and intentions of the members of the Miranda Court, and subsequent precedent to determine Miranda's true nature. Further, this Article examines the reasoning of Vega and the dangers created by its pronouncements, especially in light of the Court's earlier characterization of Miranda as a constitutional rule in Dickerson v. United States. This Article asserts that the Justices who joined the Miranda opinion clearly and repeatedly explained that Miranda's warnings requirement was a constitutional right. Further, Miranda itself indicated that it was establishing a right included within the Fifth Amendment privilege against self-incrimination. Finally, this Article suggests that Vega's cramped reasoning rejecting Miranda's constitutional status, along with the Court's inconsistent interpretation of Miranda over the decades, has not only fatally weakened Miranda's warnings requirement but also undermined the Court's own authority. [ABSTRACT FROM AUTHOR]

This article provides an overview of the offense of illicit enrichment in Spain and its recent implementation. Illicit enrichment is a crime related to corruption, but its definition and enforcement vary across countries. Spain has recently adopted a new offense of illicit enrichment, following Portugal's model, which differs from international standards. The article explores the debate surrounding this criminalization, the criticisms of the law, and the European Union's proposal to harmonize the offense across Member States. It also discusses the categorization of illicit enrichment as a form of disobedience rather than an increase in assets, the bodies responsible for verifying asset justifications, and the need for non-criminal regulations. The article also examines the principle of the right not to incriminate oneself and its relation to the offense of illicit enrichment. It concludes by suggesting that existing mechanisms for investigating public officials' assets should be strengthened before resorting to imprisonment for non-compliance. [Extracted from the article]

The article delves into the case of McCoy, analyzing the Court's focus on autonomy-as-choice, critiquing its impact on attorney-client relationships and neglect of systemic issues harming human dignity. It argues that the Sixth Amendment framework misinterprets the case, and emphasizes McCoy's Fifth Amendment rights against self-incrimination. Topics include critique of autonomy-as-choice, Sixth Amendment misapplication, and Fifth Amendment rights violation.

This paper analyses new fact-finding methods in criminal proceedings, using state-of-the-art innovations in neuroscience and artificial intelligence (AI). It will outline the existing methods and explain their effects. Then it will address the criminal-law aspects of the use of such methods as evidence in criminal proceedings, with an emphasis on the assessment of their admissibility from the perspective of the right to a fair trial and the privilege against self-incrimination. This topic will be observed from the perspective of US and European law, highlighting the existing jurisprudence of the European Court of Human Rights (ECtHR) and the legal standards established by the court in relation to the privilege against self-incrimination. Based on this analysis, the authors will formulate a conclusion suggesting that the use of current AI technologies should be juxtaposed to the relevant benchmark of the privilege against self-incrimination as the requisite standard of the right to a fair trial.

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment's Self-Incrimination and Due Process Clauses. Although the Supreme Court's self-incrimination cases have examined the privilege's historical roots in British and early American common law, the Court's jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors. The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the nation's Second Founding following the Civil War. Enslaved persons' understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine firstperson slave narratives in order to draw upon enslaved persons' experiences for insights into self-incrimination doctrine. This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court's self-incrimination jurisprudence. The Article next discusses the nation's Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article then examines enslaved persons' views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons' own first-person narratives. This evidence reveals that the Supreme Court's cramped and formalistic approach to selfincrimination is inconsistent with the post-Civil War Constitution's purposes and values. The Article concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons and calls upon courts to take such evidence into account in interpreting the privilege against self-incrimination. [ABSTRACT FROM AUTHOR]

Copyright of Revista Brasileira de Direito Processual Penal is the property of Instituto Brasileiro de Direito Processual Penal and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Nuevo Foro Penal is the property of Universidad EAFIT and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Catholic approach demands some "determinate" (Walzer [24]: 178) and "socially expressed" (Walzer [24]: 177) punishment - and this is I the i reason why Walzer prefers it. And, more importantly, it obscures the fundamental nature and importance of the problem of dirty hands.[6] Consider how, for example, although Walzer concedes that we all - politicians and non-politicians alike - can face dirty hands dilemmas, he still insists that there is something special about the way in which politicians face these (or about what is at stake when it is politicians who face these dilemmas, etc.). Tellingly, Walzer suggests that this alleged right that non-politicians may have (and that politicians, regarding their political activity, certainly lack) "might be regarded as the moral equivalent of our legal right not to incriminate ourselves" (Walzer [24]: 165). The protestant approach exemplified by Weber also prescribes a punishment, but in Walzer's estimation, such punishment is too private and indeterminate, entirely left to the conscience of the tragic hero, thus giving us reason to suspect the politician with dirty hands of "either masochism or hypocrisy or both" (Walzer [24]: 177).[17] Walzer prefers the Catholic approach over the Protestant approach - Camus over Weber - because only the former prescribes a "determinate penalty" for a "determinate crime" (Walzer [24]: 178). [Extracted from the article]

This article presents how Chapter 2 of Directive (EU) 2019/1 of the European Parliament and of the Council (the ECN+ Directive) has been transposed into Polish law. This Chapter refers to the fundamental rights of undertakings in proceedings concerning infringements of Articles 101 and 102 TFEU. The article discusses selected issues related to the correctness of the transposing legislation. It formulates a critical assessment of the content of the Polish legislation and proposes how these provisions could be amended. The authors conclude that even in areas where Chapter 2 is quite self-explanatory, the legislation, being excessively restrained, needed a different approach from the legislature. Next, the scope of the transposing provisions related to the right to be heard, legal professional privilege and privilege against self-incrimination is too narrow, and in the case of the statement of objections, what was done is 'false' implementation. [ABSTRACT FROM AUTHOR]

Since 1989, the Court of Justice of the European Union has recognised a privilege against self-incrimination for undertakings subject to public enforcement procedures on the basis of Articles 101 and 102 TFEU. That privilege forms part of the fundamental rights of the defence. Over time, the privilege has been read into Article 6 ECHR and has gained ground in other domains of EU law as well. Against that background, the question arises as to whether the CJEU's original case law in the field of EU competition law needs to be updated. This paper revisits that case law by comparing it with developments in the context of the ECHR and in other domains of EU law. It argues that, in light of those developments, a case law update may indeed prove necessary. However, such an update alone would not sufficiently address the practical difficulties currently surrounding the application of the privilege in practice. For that, more coordinated legislative action would be warranted. [ABSTRACT FROM AUTHOR]

The often-overlooked provision of criminal law, which holds significant importance is section 313 of the Code of Criminal Procedure 1973. Section 313 grants the accused an opportunity to provide their statement, ensuring their right to be heard and preventing self-incrimination. This article explores the background, evolution, and objectives of section 313 CrPC, as well as its alignment with the principles of natural justice. The main aim of the article is to demonstrate how India still falls short in upholding the right to silence as per section 313, through a detailed analysis of various judgments passed by the Supreme Court of India, and laws enacted in other jurisdictions around the world. The article addresses the issue of Indian courts using adverse inferences from an accused person's silence, which conflicts with Article 20(3) of the Indian Constitution. It argues that drawing such inferences should be reconsidered by the courts, as it contradicts important legal principles and undermines the right to a fair trial. [ABSTRACT FROM AUTHOR]

This article discusses the importance of promoting both the rights and obligations of citizenship, particularly in the context of parliamentary procedure. The author compares the discussions of member rights and obligations in parliamentary authorities and highlights the connection between constitutional rights and the rights enjoyed in organizations. The article also references Richard Haass' book, "The Bill of Obligations," which argues that Americans should focus more on their obligations to democracy. The author emphasizes that parliamentarians have a special role in educating others about the rights and obligations of American citizenship. The article concludes by urging parliamentarians to promote these rights and obligations in their work. [Extracted from the article]

Copyright of Taiwan Law Review is the property of Angle Publishing Co., Ltd and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Considered for a long time as the „eyes and ears of justice″, the witness has become a procedural subject around which several controversies have arisen since the entry into effect of Law no. 135/2010 on the Criminal Procedure Code. The suspected witness, the one against whom further criminal prosecution has not yet been ordered, has acquired a distinct position, shaped by the ECtHR jurisprudence and redefined by CCR dec. no. 236/2020. Although the ECtHR has repeatedly ruled that the guarantees of fairness in proceedings apply once an accusation is formulated, it has also recognized these same guarantees for individuals who are heard as witnesses, but are simultaneously suspected of committing offenses. Even after the official release of the constitutional court’s decision, there are a series of aspects that automatically, are rising debates and controversies, with the most important one being whether there is a genuine right for the witness to remain silent. Has the phrase „cannot be used against them″ in art. 118 CPP become predictable and, at the same time, a barrier against potential abuses? Can a „right to silence and non-self-incrimination″ be recognized ab initio? The balance between the general interest of a fair conduct of the criminal proceedings and the rights of the „suspected″ witness has required and continues to require practical solutions from the judicial authorities, ensuring that the right to defense and the right to a fair trial are respected.

As Leonard Williams Levy discussed in Origins of the Fifth Amendment and other works, the expression advising against cutting "our owne throats with our tongues" exemplifies the complex referential matrix of the United States Constitution's clause against self-incrimination. By tracing the sources of this paradigmatic phrase, it is possible to identify several traditions in which these words have particular significance, while documenting a conceptual drift similar to the unpredictable dynamics at work in the crystallization of proverbs. An appraisal of the poetic, conceptual, and cultural tenets underlying this image allows for the reconstruction of the connections among oral and written references belonging to vernacular, biblical, Arabic, and Greco-Roman traditions. Moreover, this analysis discloses associations relating to childhood, madness, inebriety, and barbershops that facilitate a reassessment of both the roots of the Bill of Rights' provision against self-incrimination and the legal traditions in which "the Fifth" has been usually framed. [ABSTRACT FROM AUTHOR]

Certain publication is dedicated to one of the principles of the criminal process – the freedom to testify against oneself. That principle is found in the domestic legislation of most democratic countries, as well as in international legislation. The article in reference invokes the analysis of the spectrum of problems regarding the fundamental right of the person to decide whether he wants to submit statements to the judicial bodies that bring him criminal charges. The given analysis is based on the jurisprudence of the Republic of Moldova, international and, in particular, of the European Court of Human Rights. The authors identify the problems that have arisen and give solutions to eliminate the divergences, through practical recommendations and proposals for ferenda law, emphasizing the importance of respecting human rights in the criminal process through the prism of art. 6 of the ECHR and art. 21 of the Code of Criminal Procedure of the Republic of Moldova. [ABSTRACT FROM AUTHOR]

Copyright of Revista Brasileira de Direito Processual Penal is the property of Instituto Brasileiro de Direito Processual Penal and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

"Character: Writing and Reputation in Victorian Law and Literature" by Cathrine O. Frank is a comprehensive and insightful exploration of the intersection between law and literature in Victorian culture. Frank examines the concept of "character" and its multifaceted meanings in both legal and literary contexts. Through five case studies, she analyzes how legal doctrines, statutes, and landmark cases influenced the portrayal of characters in novels by authors such as George Eliot, Nathaniel Hawthorne, Anne Brontë, Elizabeth Gaskell, Anthony Trollope, Robert Louis Stevenson, Oscar Wilde, Arthur Conan Doyle, and Julian Barnes. Frank's study offers a nuanced understanding of the complex relationship between law and literature in shaping societal conceptions of individuality and community. [Extracted from the article]

Coroners' inquests in Australia and New Zealand are no longer formally part of the criminal justice process. However, they can take place after the resolution of criminal charges and, although coroners' findings cannot be expressed in terms of persons' criminality, inquests can also result in referrals to prosecuting authorities. In addition, referrals to professionals' disciplinary regulators can be made by coroners. The potential for such adverse outcomes for the individuals affected makes it essential for those representing parties or witnesses at coronial hearings to consider carefully the forensic strategies that they deploy and, in particular, the advice that they provide, including in relation to claims to the privilege against self-incrimination. By reason of the partial abolition of the doctrine of autrefois acquit in a number of Australian jurisdictions, the potential for new and compelling evidence to emerge during an inquest takes on additional significance for persons who have been found not guilty of offences such as a murder at a previous trial. [ABSTRACT FROM AUTHOR]

This is the second article in a two-part series about the PrevBOT concept, which is an automated tool supporting the police in preventing CSEA in online chat rooms. The first article described the PrevBOT concept, its theoretical framework, and the technology. This Part II analyses legal issues central to the implementation of PrevBOT. In particular, issues of privacy, police provocation, self-incrimination and data protection are addressed. In addition, PrevBOTʼs identification and categorization functions are analyzed against the proposed European Artificial Intelligence Act. The conclusion is that the PrevBOT concept may be lawfully implemented, thus providing the police with a new tool to prevent online CSEA.

This study focuses on Philip Roth's Portnoy's Complaint subjects the struggle between self and world. Roth's characterization makes a haven of protection and stability, or a placement, from which they may understand the world meaningfully. In this novel, Roth pertains stability and peace in the achievement of selfhood through sees home may be their static, centred self, from which they could get meaning from their surroundings. In the novel Portnoy's Complaint, the protagonist reveals external and internal and over suspicious conflicts. Roth's writing explores Portnoy was artistically adrift, psychologically wrecked and economically weak. He had to overthrow my literary education, once said famously, "I have to overthrow my first three books", to self-liberate and test my boundary in particular, the line between far and too far. It is revealed that Roth while self-edit his manuscripts, favored, an associative monologue, prickled with distinct mix of humor and bitterness, self-justification and self-incrimination. Thus, Portnoy's Complaint is an attempt to self-justify and incriminate in a humor and bitterness fashion and to liberate one's style of writing as an accomplished author. [ABSTRACT FROM AUTHOR]

Employees facing destructive leader behavior or evidence of unethical or illegal action often remain silent, and such silence has been argued to be problematic. We argue that the management literature has a limited and biased view of silence, and contend that it can have value for employees and the organization. We discuss the functional value of silence in organizations and how it can be a strategic response to destructive and unethical leaders. Indeed, we argue that both voice and silence have functional value. Drawing on the see-judge-act model, we describe why and when employees become silent or choose to "break the silence," and we explain that both silence and voice have the ability to confront or resist destructive leadership. [ABSTRACT FROM AUTHOR]

With the emergence of advanced encryption technologies such as Quantum Cryptography and Full Disk Encryption, an era of strengthening information security has begun. Users respond positively to the advancement of privacy-enhancing technology, on the other hand, investigative agencies have difficulty unveiling the actual truth as they fail to decrypt devices. In particular, unlike past ciphers, encryption methods using biometric information such as fingerprints, iris, and faces have become common and have faced technical limitations in collecting digital evidence. Accordingly, normative solutions have emerged as a major issue. The United States enacted the CLOUD Act with the legal mechanism of 'Contempt of court' and in 2016, the United Kingdom substantiated the Compelled Decryption through the Investigatory Powers Act (IPA). However, it is difficult to enforce Compelled Decryption on individuals in Korea because Korean is highly sensitive to personal information. Therefore, in this paper, we sought a method of introducing a Compelled Decryption that does not contradict the people's legal sentiment through a perception survey of 95 people on the Compelled Decryption. We tried to compare and review the Budapest Convention with major overseas laws such as the United States and the United Kingdom, and to suggest a direction of legislation acceptable to the people in ways to minimize infringement of privacy. We hope that this study will be an effective legal response plan for law enforcement agencies that can normatively overcome the technical limitations of decoding. [ABSTRACT FROM AUTHOR]

Over the past decades, the psychological science has accumulated a large corpus of empirical knowledge about police interviews, deception detection, and suspects' confessions. However, it is unclear whether European police forces' practices and beliefs are consistent with recommendations derived from this empirical literature. The study described in this report is part of a larger research project examining European police investigators' practices and beliefs. An online survey was administered to Guardia Civil (n = 89) and Policía Nacional investigators (n = 126). The survey inquired about the length, frequency and electronic recording of interviews, the suspects' use of their right to remain silent, investigators' self-reported skills in distinguishing between truthful and deceptive statements, their estimates of the frequency of (false) confessions, and their use of specific interview tactics. The outcomes provide insights into investigators' knowledge and practices, highlight specific needs, and allow for a comparison between European and North American police forces. [ABSTRACT FROM AUTHOR]

Absolute constitutional rights are rare--even the venerable rights of free speech and freedom of religion are not absolute. In criminal prosecutions, the Sixth Amendment's right to counsel has been described as the most important of all rights because it affects a defendant's ability to assert his or her other rights. But even the right to counsel is not unlimited. Yet one right is absolute. A criminal defendant has an absolute right not to testify in his own criminal trial. The text of the Self-Incrimination Clause of the Fifth Amendment--"No person . . . shall be compelled in any criminal case to be a witness against himself"--confirms that the defendant and his counsel have "the absolute right to decide that the accused shall not become a witness against himself." That clause "commands that the decision be made free of any compulsion by the State." Because the Bill of Rights is not meant to create "parchment barriers," invoking a constitutional right should matter, especially where a person's life or liberty is at stake, and the consequences of invocation should not undermine the right itself or deter future assertion of the right. This logic equally applies to the Fifth Amendment. In 1965, the Supreme Court held in Griffin v. California that an instruction from a judge or a comment from a prosecutor that urges jurors to draw an adverse inference from a defendant's refusal to testify and to use that inference as substantive evidence of guilt violates the Fifth Amendment. After Miranda v. Arizona, Griffin is the Warren Court's most controversial Fifth Amendment ruling. Since its announcement, the result and reasoning in Griffin have been roundly criticized by jurists, lawyers, and scholars. One legal scholar has noted that the conservative Justices on the modern Court "treat Griffin like a virus under quarantine." Some have urged that Griffin be overruled. But that has not happened--yet. In Mitchell v. United States, a 1999 ruling, Justice Kennedy described the rule in Griffin as "of proven utility" and "an essential feature of our legal tradition." But the five Justices who signed Mitchell are no longer on the Court. Justice Thomas thinks Griffin should be "reexamined," which is his politic way of saying that he is ready to overrule it. A majority of the Court may agree with him. Griffin was poorly written, but correctly decided. The absolute right not to testify is meaningless if state officials can urge jurors to use a defendant's silence as substantive evidence of guilt. If the state ordered a defendant to testify on pain of contempt or physical abuse and then used his incriminating testimony as evidence of guilt, compulsion under the Fifth Amendment would be undeniable. The state should not be able to achieve the same result--eliciting involuntary, incriminating testimony--by urging jurors to view the refusal to testify as evidence of guilt. In that instance, silence is as damning as oral testimony. And in both scenarios, the accused is unable to avoid self-incrimination: when forced to testify, the accused is subject to cross-examination and required to testify against himself; and when he refuses to testify, the accused's silence becomes unavoidably incriminating when the state is permitted to comment and invite an adverse inference. Thus, the absolute right not to be a witness against oneself means that the choice to remain silent should not be used as evidence either. Otherwise, the right is no longer absolute. To paraphrase Justice Scalia, a harsh critic of Griffin, the accused's absolute right to demand that the prosecution prove its case without his assistance "is not to be impaired by the jury's counting the defendant's silence at trial against him." This Article does three things. First, it provides a historical account of the rise and fall of the constitutional principle announced by Griffin. Second, it identifies and explains the Court's significant decisions addressing adverse comment and its nexus with the Fifth Amendment. Finally, this Article offers a normative defense of Griffin and shows why its holding is consistent with the purpose of the Fifth Amendment as it is understood in the twenty-first century. [ABSTRACT FROM AUTHOR]

This paper analyses new fact-finding methods in criminal proceedings, using state-of-the-art innovations in neuroscience and artificial intelligence (AI). It will outline the existing methods and explain their effects. Then it will address the criminal-law aspects of the use of such methods as evidence in criminal proceedings, with an emphasis on the assessment of their admissibility from the perspective of the right to a fair trial and the privilege against self-incrimination. This topic will be observed from the perspective of US and European law, highlighting the existing jurisprudence of the European Court of Human Rights (ECtHR) and the legal standards established by the court in relation to the privilege against self-incrimination. Based on this analysis, the authors will formulate a conclusion suggesting that the use of current AI technologies should be juxtaposed to the relevant benchmark of the privilege against self-incrimination as the requisite standard of the right to a fair trial. [ABSTRACT FROM AUTHOR]

The article addresses the conflict between an individual's interest in securing their smartphones from cybercriminals against an individual's interest in the U.S. Constitution's Fifth Amendment protection against self-incrimination. Topics include origins and development of the Fifth Amendment privilege against self-incrimination, the direction of the Constitution and privilege against self-incrimination and cybersecurity view of biometric encryption and authentication.