The Right to Silence Protects Mental Control
Georgetown University Law Center
May 28, 2010
42 AKRON L. REV. 763 (2009)
FORENSIC TOOLS AND LAW (R. Gavvala ed., 2009) (reprinted)
LAW AND NEUROSCIENCE (M. Freeman ed., 2010) (reprinted)
The Fifth Amendment prevents suspects from being forced to provide testimonial declarations like verbal or silent responses, but permits the compulsion of physical evidence like emails, tattoos, or medical records. Scholars have criticized this distinction between testimonial and physical evidence for failing to explain hard cases or capture the harm that the right to silence is said to prevent. But the prevailing accounts of that harm—deceiving questioners; compelling suspects to choose among indictment, contempt, and perjury; or diluting the integrity of statements made by innocent ones—fail to explain a common intuition that police may not extract incriminating thoughts from a suspect’s brain against his will. I reconceive the right as protecting control over a person’s mental life. Neural imaging, by packaging testimonial memories in the physical form of brain waves or blood flows exposes the false dichotomy that this distinction presumes between mental phenomena (mind) and brain chemistry (body). I use a range of cases to illustrate the explanatory and normative force of this account.
Number of Pages in PDF File: 26
Keywords: Fifth Amendment, Self-Incrimination Clause, physical-testimonial distinction, mind-body dualism, forensic neuroscience, brain imaging
JEL Classification: K14Accepted Paper Series
Date posted: May 28, 2010 ; Last revised: August 4, 2012
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