The Right to Silence Protects Mental Control

Law and Neuroscience, O. Jones, et al., 2014, Excerpted

Law and Neuroscience, M. Freeman ed., 2010, Reprinted

Forensic Tools and Law, R. Gavvala ed., 2009, Reprinted

Akron Law Review, Vol. 42, p. 763, 2009

26 Pages Posted: 28 May 2010 Last revised: 5 Aug 2013

Dov Fox

University of San Diego: School of Law

Date Written: May 28, 2010

Abstract

The Fifth Amendment protects criminal suspects from being forced to provide "testimonial" declarations like verbal or behavioral responses. But that privilege against self-incrimination allows police to take and use "physical" evidence, however, like emails, photographs, or medical records. This distinction between testimonial and physical evidence has been defended on the ground that it helps to preserve the integrity of statements by innocent suspects, or that it excuses an impossible choice among indictment, contempt, and perjury.

But these dominant rationales fail to explain a common intuition that police may not extract incriminating thoughts from a suspect’s head against his will. Brain imaging, by packaging testimonial memories in the physical form of brain waves or blood flows exposes the false dichotomy that this distinction presumes between the mental phenomena of the mind and the brain chemistry of the body. I reconceive the right to silence as protecting person’s control over his mental life and use a range of hard cases to defend the explanatory and normative force of this account.

Keywords: Fifth Amendment, Self-Incrimination Clause, physical-testimonial distinction, mind-body dualism, forensic neuroscience, brain imaging

JEL Classification: K14

Suggested Citation

Fox, Dov, The Right to Silence Protects Mental Control (May 28, 2010). Law and Neuroscience, O. Jones, et al., 2014, Excerpted; Law and Neuroscience, M. Freeman ed., 2010, Reprinted; Forensic Tools and Law, R. Gavvala ed., 2009, Reprinted; Akron Law Review, Vol. 42, p. 763, 2009. Available at SSRN: https://ssrn.com/abstract=1617410

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)

HOME PAGE: http://www.sandiego.edu/law/news/news_releases/newslist.php?_focus=44957

Paper statistics

Downloads
258
Rank
96,674
Abstract Views
2,162