Pre-arrest right to remain silent

On Apr 14, 7:55 am, patrick.20...@gmail.com wrote:
> I understand that one can invoke their right to silence in the face of
> police arrest or formal interrogation, but I require information about
> one's rights regarding on-scene police questioning before any arrest
> occurs.

Others have ably addressed the many specific collateral issues raised by your hypothetical domestic-violence scenario, which I have snipped, but I can't see where anyone has gone right at your basic question, re: the right to silence even before an arrest.

I beg to differ with esteemed commentator Stan on whether a right to silence  differs between Canada and USA.  On the one hand, he is right that the precise parameters of what conduct is required of the police do differ, because of divergent court interpretations over the years since both countries began developing their branches of the common law separately from its English roots.   In essence, though, the right to remain silent is a necessary corollary of the right to avoid self-incrimination, a right that goes back probably to the Magna Carta, and certainly at least to the time of Sir Thomas More in the 1500s.  This from the British Library's website, a translation of the Great Charter into modern English (the original, like its title, was in Latin):

"(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it."

See, http://www.bl.uk/treasures/magnacarta/translation.html

IMO that was the first time in history that the government (i.e. the King) limited itself in this way, so that an accused person could not be convicted of a crime upon the accused's own unsupported statement.   While the principle (still valid) acknowledges that if one _does_ make a statement, that statement can be used as evidence, a confession uncorroborated by other evidence (either testimonial or circumstantial) is generally not sufficient to support a conviction.   But I digress.  The point is, a corollary of this Magna Carta right is the right _not_ to make such a statement: since such a statement alone would be insufficient to convict, the refusal to make a statement (itself a form of statement) would also be insufficient to convict of any crime.  I do not know whether any English jurist or lawyer actually made that connection until the accusation and trial of Thomas More, 3 centuries later.

More is the famous lawyer, royal chancellor, dear friend of the King and (to Catholics) saint, who invoked his right to remain silent when tried for treason because he did not support King Henry VIII's attempted divorce from his first wife -- being as all England was, at the time, Catholic, and the Pope would not allow the divorce (catch Paul Scofield in the 1966 movie "A Man For All Seasons" if you don't know the story).   More lost his head anyway, a martyr to the Catholic cause, but that was after a kangaroo trial where his rights were trampled; he, as one of the foremost lawyers of his era, clearly knew at that point in history that the right of an accused to maintain silence in the face of official questioning was already an established principle of English law.   And More had never spoken one treasonous word against the King; his only "crime" was in failing to affirmatively avow his support of the divorce, a statement that would have violated his conscience by requiring him to renounce the authority of the Pope.

> Here's my question: Can the husband, at this point, invoke his right
> to silence despite the fact he's not been formally arrested?

Yes.   The right to silence has nothing to do with whether or not the suspect has already been arrested or formally accused of anything.  I'm guessing that OP is misreading the basis of the "Miranda warnings" required by USA law to infer that such rights did not exist in USA before the Miranda decision in 1966, and that now, after SCOTUS decided the Miranda case, such rights only apply after arrest.   Both premises would be wrong.

In fact, the Miranda court acknowledged that the right to silence, the right to consult a lawyer before answering, and all the other "Miranda Rights" already existed, from Constitutional and common law sources, and simply ruled that unless the police _informed_ the suspect he had those rights before questioning him after taking him into custody, they could not use any of the statements he made during custodial interrogation as evidence against him.   That is a very different matter from thinking that the rights did not exist until SCOTUS brought them into being whole cloth and from thinking that even now, they do not apply until after arrest.

> How
> should he respond to the officer if he wishes not to incriminate
> himself?

Others have provided numerous suggestions that ably answer that part of your question, to which my additions would be superfluous.

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