Due process or crime control? An examination of the limits to the right to silence in criminal proceedings in Ghana

Abstract

This article examines the extent of participation of accused persons in criminal proceedings in Ghana, particularly in the context of the procedural limits to the right to silence and its associated privilege against self-incrimination. Though normatively set along a libertarian theory that largely insulates the accused from matters of proof, the article finds that the legal regime of the right to silence not only admits of several procedural burden-shifting mechanisms that enjoin accused persons to speak and participate in the proof process, it also permits the drawing of adverse inferences against the accused's exercise of the right to silence in several instances. The analysis extends to a critical evaluation of the benefits of silence in the operational design of the adversarial trial. In that context, it discusses the extent of the accused's beneficial use of the right to silence and finds it an imprudent and legally-uninformed exercise that may deprive the accused person of their right to aggressively partake in the search of facts and evidence and thus of their right to adversarial trial. The article is relevant as it constitutes the first attempt at defining the criminal justice policies underlying the limitations to the right to silence in Ghana. It adds to the existing knowledge on the right to silence in criminal proceedings as it delves into the philosophical underpinnings of the criminal procedure which is increasingly leaning towards a truth-finding and utilitarian ideology away from the core due process theory that generally defines the adversarial criminal procedure.