[2] In many legal systems, accused criminals cannot be compelled to incriminate themselves—they may choose to speak to police or other authorities, but they cannot be punished for refusing to do so.
In Sorby v Commonwealth (1983), the High Court affirmed that the common-law privilege against self-incrimination could only be abrogated by explicit statutory provisions.
However, section 5(1) of the Canada Evidence Act eliminated that absolute common law privilege by instead compelling witnesses to testify.
In exchange, section 5(2) of the same act granted the witnesses immunity from having that evidence used against them in the future except in the case of perjury or impeachment.
While these provisions of the Canada Evidence Act are still operational, they have been overtaken in their application by the immunities granted by sections 13 and 7 of the Canadian Charter of Rights and Freedoms.
[7] After the 1996 amendments to the Criminal Procedure Law, Article 15 states that "It shall be strictly prohibited to extort confessions by torture, gather evidence by threat, enticement, deceit, or other illegal means, or force anyone to commit self-incrimination.
[21][22] Justice Robert H. Jackson further notes that "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances".
[23] Miranda warnings must be given before there is any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way".
The United States Supreme Court rulings of Miranda v. Arizona and Terry v. Ohio leave questions about the types of conduct that are appropriate for both the protection of the public, and criminal suspects' constitutional rights.
[27] During the action of handcuffing a suspect, a custodial environment is created, thereby invoking the information of that individual's Miranda rights.
[27] In holdings of U.S. versus Fiseku, the defendant argues that the officers’ use of handcuffs convert a Terry stop into an arrest without probable cause, thus violating his Fourth Amendment rights.
[28] The District Court ruled in disagreement with this matter, suggesting that there were unusual circumstances surrounding the investigatory stop, requiring the use of handcuffs in order to ensure the protection of those officers involved.
In both cases, the Second Circuit court made the determination that the use of handcuffs converted these stops into arrests, and were grounds for Miranda.
The new verdict could potentially be instituted to enable police officials to impede on citizens' constitutional rights as long as the technique being used is considered to be less intrusive than that of an officer pulling his or her gun on an unarmed suspect.
truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth.