Mute of malice
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A mute of malice is a defendant in a criminal case who willfully chooses not to speak, as opposed to one who does not speak because he is physically or psychologically unable to do so (see aphonia and muteness, respectively). In British jurisprudence, a separate trial is held before the main trial to determine whether the defendant is mute of malice or mute due to "visitation of God." In the past, if he was found by the jury to be mute of malice, he'd be tortured until either he spoke or died. The concept is practically foreign to American jurisprudence (it does not even appear in Black's Law Dictionary) because the defense attorney utters the plea and the defendant does not have to testify (per the case Griffin v. California interpreting the Fifth Amendment to the United States Constitution).
In the Kavanagh QC episode "Mute of Malice", a military chaplain goes mute after admitting to killing his brother. He's found to be mute of malice but is afterward exonerated of the murder charge when his brother's suicide note surfaces.
[edit] References
- A. J. Morris, S. Elcock, T. Hardie, & R. D. MacKay, "Changes to (un)fitness to plead and insanity proceedings" The Journal of Forensic Psychiatry & Psychology December 2006; 17(4): 603 – 610
- R. Morris, "The Face of Justice: Historical Aspects of Court Interpreting" Interpreting Volume 4, Number 1, 1999, pp. 97 - 123 (27)
