A suspect in a criminal case has the right to remain silent. But what happens when someone actually exercises that right? Can silence influence a judge’s decision? Criminal law scholar Tessa van der Rijst explored this question and suggests that silence can indeed affect judicial decision-making. How does that work exactly?
How silence comes into play
According to Van der Rijst from VU Amsterdam, silence operates in two ways. First, the absence of an alternative explanation may lead judges to assess the evidence differently. Especially in cases where the evidence is less clear-cut, as is sometimes the case in money laundering cases, silence can increase the likelihood of a conviction. In cases with more straightforward evidence, such as theft where someone is caught in the act, silence usually plays a much smaller role.
Second, silence may (to some extent) contribute to a sense that the suspect is guilty. ‘Judges are human too,’ Van der Rijst explains. ‘Sometimes the idea arises that someone who remains silent has something to hide. That feeling may play a role, but it must never be decisive. Judges must always assess whether the evidence is strong enough, without allowing silence to tip the balance.’
From legal frameworks to courtroom practice
To gain a clearer picture, Van der Rijst looked beyond legislation and academic literature to examine courtroom practice. She began by analysing judgments of the Dutch Supreme Court and the European Court of Human Rights (ECtHR) to establish the legal frameworks that apply in the Netherlands. She then systematically studied rulings by district courts and courts of appeal in money laundering and theft cases to see how judges deal with silence in practice. Next, she interviewed twenty criminal judges across the Netherlands to gain insight into the personal considerations behind judicial decision-making. Finally, she examined various theories of evidence.
Keeping a critical eye
Van der Rijst found that judges sometimes rely on assumptions when assessing evidence. That can be useful, but it is not always accurate. ‘If someone owns expensive items without a clear source of income, it is quickly assumed that the money comes from criminal activity,’ Van der Rijst says. ‘But there may be other explanations, such as an inheritance or a loan.’ It is up to the Public Prosecution Service to actively investigate this: the charges must be substantiated sufficiently, even if the suspect remains silent. Judges, in turn, must verify whether this has been done properly. This critical approach prevents silence from carrying too much weight and helps make the justice system fairer and more transparent.
Van der Rijst will defend her PhD on this research at Vrije Universiteit Amsterdam on 30 January.