In philosophy and jurisprudence, U.S. law is rooted in the precepts of English common law. But U.S. and English law have some notable differences.
For one, the U.K. parliament has constitutional legal supremacy over even the U.K. Supreme Court. A majority British government can overrule a Supreme Court decision by simply passing countervailing legislation. The same is not true in the United States where, on matters of constitutional law, the Supreme Court has the final “province” on what the law is (precluding a constitutional amendment).
We’ve just seen another notable difference between English and U.S. law in Kyle Rittenhouse’s trial for murder. In August 2020, Rittenhouse fatally shot two men during riots in Kenosha, Wisconsin.
On Wednesday, the presiding judge reacted with shock and fury when prosecutor Thomas Binger sought to draw an adverse inference from Rittenhouse’s earlier silence. After a series of shaping questions, Binger asked Rittenhouse the leading question of whether he only spoke because witnessing evidence had been presented.
“After all of that, you are telling us your side of the story?” Binger asked.
Binger’s inference was that Rittenhouse’s earlier reservation to testify was to give himself flexibility at trial.
Judge Bruce Schroeder reacted to this angrily.
“This is a grave constitutional violation for you to talk about the defendant’s silence,” he said. “That is — you’re right on the borderline. You may be over it. But it better stop.”
Schroeder referenced the constitutional case law on the Fifth Amendment right to remain silent. It is, as the judge pointed out, a very basic point of criminal law. It takes root in the Fifth Amendment cases of Griffin v California and Mitchell v United States.
In England, however, a different legal standard applies. Although defendants cannot be compelled to speak, they can be subjected to a judge’s jury instruction that adverse inferences may be drawn from their silence. This can occur when a defendant fails to offer evidence at trial following the prosecution’s submissions, account for their presence at a location related to the criminal charges, or account for objects or marks on their person related to the criminal charges.
Most relevant to Rittenhouse, an English judge may also allow adverse inferences to be drawn by a jury when a defendant, while being interviewed under police caution (Miranda warning equivalent) and offered access to an attorney, “failed to mention any fact relied on in his defense [at trial] in those proceedings.”
This underlines why the English Miranda rights equivalent includes the caveat that “it may harm your defense if you do not mention when questioned something which you later rely on in court.”
This notable difference underlines the relative U.S. legal prioritization of individual freedom. That priority extends to laws over speech.
Anyway, you can watch the exchange below.
Judge in Rittenhouse trial scolds prosecution for edging on a “grave constitutional violation”. pic.twitter.com/21zqgWfqpw
— Mythinformed MKE (@MythinformedMKE) November 10, 2021
