Standing Mute – to remain silent when required to enter a plea; the equivalent of a “not guilty” plea

     This page is continued from Criminal Law Self-Help >>>> Types of Pleas and Pleadings >>>> Types of Pleas (criminal law):

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stand mute:
(16c)

1. Criminal law. (Of a defendant) to refuse to enter a plea to a criminal charge; especially, to remain silent when required to answer and plead.  *  Standing mute is treated as a plea of not guilty.  [1]

standing mute:

1. An accused in a criminal case refusing to plead. 21 Am J2d Crim L § 462

The equivalent of a plea of not guilty. Anno: 58 ALR 79, s. 82 ALR 369, 116 ALR 231. [2]

1. The act of a defendant in a criminal case who refused to enter a plea.  The court will enter a plea of not guilty on behalf of a defendant who stands mute. [3]

     Excerpt from Harold Greville Hanbury’s English Courts of Law (1944):

     “A candid historian cannot pretend that our criminal law and procedure has been at all times humane.  Torture was, except in one particular, the monopoly of the Court of Star Chamber, but one form of torture was well known at common law.  It arose out of the rule that a prisoner could not be tried by a jury without his consent.  If, therefore, an accused person would not plead, but elected to ‘stand mute,’ the trial could not proceed.  But the law would not suffer itself to be thus baffled without a terrible struggle.  A statute of 1275 authorized the use of the ‘peine forte et dure’ to extort consent.  This consisted in pressing the accused beneath heavy weights until he consented or died.  The reason why persons would choose to suffer these appalling agonies rather than plead was that thus they would avoid the forfeiture of property which would, until its abolition in 1870, follow a conviction for treason or felony.  In 1772 the barbarity that had so long disfigured the law was ended by an enactment that standing mute in cases of felony should be equivalent to a conviction.  In 1827 the law was again altered, and it was provided that, if the prisoner, in any criminal case, stands mute, a plea of not guilty shall be entered, and the trial shall proceed as if he had thus pleaded. [4]

2. (Of any party) to raise no objections; especially, to refrain from answering or responding to a motion, so that the court must decide the matter solely on the movant’s arguments.

peine forte et dure [French “strong and hard punishment”] (18c) Hist. The punishment of an alleged felon who refused to plead, consisting of pressing or crushing the person’s body under heavy weights until the accused either pleaded or died. [1]

1. A cruel and relentless punishment: — the torturing punishment which was anciently inflicted on a defendant accused of felony who refused to plead, as a penalty for the obstinacy. State v Woodward, 68 W Va 66, 69 SE 385, 4 Bl Comm 325. — aka paine forte et dure. [2]

     Excerpt from Joseph Chitty’s A Practical Treatise on the Criminal Law (2d ed. 1826):

     “In all other felonies, however, the punishment of peine forte et dure was, until lately, denounced as the consequence of an obstinate silence.  The greatest caution and deliberation were indeed to be exercised before it was resorted to; and the prisoner was not only to have ‘trina admonitio,’ but a respite of a few hours, and the sentence was to be distinctly read to him, that he might be fully aware of the penalty he was incurring. [5]

     Excerpt from Glanville Williams’ The Sanctity of Life and the Criminal Law (1957):

     “In old English law, a person charged with felony who, refusing to accept jury trial, was pressed to death (peine forte et dure), was not regarded as committing suicide, so that he did not forfeit his property. [6]

mute:
n. (17c)

1. A person (especially a prisoner) who stands silent when required to answer or plead.  *  Formerly, if a prisoner stood mute, a jury was empaneled to determine whether the prisoner was intentionally mute or mute by an act of God.  By the Criminal Law Act of 1827 (7 & 8 Geo. 4, ch. 28), if a prisoner was mute by malice, the officer automatically entered a plead of not guilty and the trial proceeded.  If adjudicated to be insane, the prisoner was kept in custody until the Crown determined what should be done.

  • mute by visitation from God (1897) Hist. The condition of a criminal defendant who remains silent rather than entering a plea at arraignment or trial for physical or psychological reasons beyond his or her control, such as deafness, muteness, or insanity.
  • mute of malice (16c) Hist. The condition of a criminal defendant who remains silent rather than entering a plea at arraignment or trial by his or her own deliberate choice. [1]

References:

Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: Harold Greville Hanbury’s English Courts of Law (1944).

[5]: 1 Joseph Chitty, A Practical Treatise on the Criminal Law 425-26 (2d ed. 1826).

[6]: Glanville Williams, The Sanctity of Life and the Criminal Law 270 n.4 (1957).

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