The Sounds of Silence

Abstract

Between 1965 and 1981, the US Supreme Court drastically re-shaped the meaning of the right against self-incrimination. At the time, numerous critics of this expansion of the right to silence insisted that its principal beneficiaries would be guilty defendants. Firing back, both the Justices and many legal theorists have argued that this expanded right likewise protects many innocent defendants and that, by reducing the rate of false convictions, the new silence regime furthers the core value of protecting the innocent.

In this paper, we examine the arguments of both the Supreme Court and such legal scholars as Seidmann and Stein in favor of the new silence regime. Our conclusion is that their arguments favoring a vastly expanded right to silence are both ill-founded conceptually and impossible to reconcile with the available empirical information about the testimonial choices actually made by innocent and guilty defendants respectively.

Keywords: silence, self-incrimination, Stein, false conviction, false acquittal, Miranda, Griffin, Doyle, Carter