Evolution of the right to remain silent in Mexico

Renee C. Licona

Abstract

What does the right to remain silent mean versus the right not to be forced to speak mean? It is similar to the difference between the right not to read this paper; versus the right not to be forced to read this paper, in the later I the writer will decide.

The answer to the question depends on your reference point. Are you thinking accusatorial or inquisitorial? The later is completely opposite of the former. Recently, Mexico has made the choice to turn their entire inquisitorial criminal system upside down by turning it into an accusatorial criminal system. Mexico will start applying a real life criminal process; an opposite approach of what has been done for hundreds of years. The change means that principles of the new system have to be implemented in Mexico. The right to remain silent per se is in the core of true accusatorial criminal systems.

This paper immerses the reader in the main characteristics of the inquisitorial and accusatorial system as well as how the right to remain silent exists in both systems. Next, the author takes the reader through the twists and turns of how Mexico’s right to remain silent was worked, and re-worked time and again in order to comply with their evolving criminal justice system. Read how it evolved from the historical inquisitorial right to remain silent, better known as the right not to be forced to speak, into an accusatorial right to truly remain silent.

The paper intends to explain why the small but powerful change to Mexico’s Constitution recognizing the right to remain silent is only yet a change to their Constitution. Now Mexico embarks on creating the change in the criminal system´s mind and thoughts. While the accusatorial system might be second nature to some, it’s a whole different way of thinking to many others. The author explains why Mexico must now set out on a path to work the new right to remain silent into being respected and understood within the system and its people.

Mexico is picking up the challenge and running with it. Why? Many in Mexico are passionate about change in the criminal system and what it will mean for the country as a whole. To many it means a better, safer, transparent, human, criminal system where the State should meet its burden of proof without defendants saying a word. No longer do defendants have to prove innocents; now prosecutors must step up to the plate, take up the burden of proof and demonstrate guilt, despite the lack of a single word elicited by the State from defendants.