A Right to Silence for Civil Defendants?

Posted: 22 Feb 2010

See all articles by Abraham L. Wickelgren

Abraham L. Wickelgren

University of Texas at Austin - School of Law; University of Texas at Austin - Center for Law, Business, and Economics

Date Written: April 2010

Abstract

The Fifth Amendment guarantees criminal defendants the right to silence, blocking the court from drawing adverse inferences from the defendant's silence. This article investigates the conditions under which extending such protection to civil defendants might increase (or decrease) social welfare. If discovery is imperfect, then defendants who acquire information about the dangerousness of their actions may hide this evidence at trial if it is bad. This tends to make the private benefit from acquiring such information exceed the social benefit. Furthermore, the private benefit from acquiring this information is greater when the court will infer the information is bad if the defendant does not present it. Thus, there are situations in which a right to silence may be necessary to prevent a defendant from acquiring information for which the social costs exceed the social benefit. On the other hand, if it is hard to hide damaging information and the release of damaging information tends to induce lawsuits, then a right to silence may dampen already insufficient incentives to acquire information.

JEL Classification: JEL K40, K41

Suggested Citation

Wickelgren, Abraham L., A Right to Silence for Civil Defendants? (April 2010). The Journal of Law, Economics, & Organization, Vol. 26, Issue 1, pp. 92-114, 2010. Available at SSRN: https://ssrn.com/abstract=1555534 or http://dx.doi.org/10.1093/jleo/ewn014

Abraham L. Wickelgren (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

University of Texas at Austin - Center for Law, Business, and Economics

Austin, TX 78712
United States

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