The University of New Hampshire Law Review


[Excerpt] “This note will explore the current state of the privilege against self-incrimination, particularly in regard to whether it works to bar negative inferences from being drawn from a defendant’s silence during sentencing in order to determine his remorse for the crime of which he has been convicted. I will focus primarily on the issue in the context of the recent New Hampshire case State v. Burgess. In that case, the court recognized the application of the privilege at sentencing, but nonetheless carved out a unique exception which made negative inferences permissible at sentencing when the defendant has admitted to the act underlying the charged crime but relied on some defense or legal justification to undermine his culpability. This note will highlight the unworkability of this exception and demonstrate how it conflicts with common law precedent.”

Repository Citation

Elizabeth Lahey, State v. Burgess: A Limitation on a Defendant’s Right to Remain Innocent, 8 Pierce L. Rev. 239 (2010), available at http://scholars.unh.edu/unh_lr/vol8/iss2/7