The Right to Remain Silent: A New Answer to an Old Question

James J. Duane

Regent University - School of Law

February 2, 2012

Criminal Justice, Vol. 25, No. 2, 2010

When a witness is summoned to testify before a grand jury or at a judicial or legislative proceeding, the lawyer for the witness frequently concludes that it may be in the client's best interest to assert the Fifth Amendment "right to remain silent," at least with respect to certain topics. The lawyer will often give the witness a card to read aloud when asserting that privilege. But precisely what words should the lawyer advise the client to read when invoking the Fifth Amendment privilege?

For more than 100 years, lawyers have shown surprisingly little imagination or ingenuity, advising their clients to state in almost exactly these words: "On the advice of counsel, I respectfully decline to answer on the grounds that it may tend to incriminate me."

This article explains why that unfortunate language is never in the best interests of the witness, and why it naturally tends to sound to most listeners as if the witness is somehow admitting that he cannot tell the truth without confessing that he is guilty of some crime. The article also points out that this archaic invocation is not required by either the language or the theory of the Fifth Amendment, nor by the most recent controlling Supreme Court precedents. The article concludes with a suggestion for an entirely new formulation for invoking the privilege, one which gives greater protection to the rights of the witness and also more faithfully captures what the Supreme Court of the United States has written about the nature of this precious constitutional privilege.

Number of Pages in PDF File: 3

Keywords: Fifth Amendment, self-incrimination, right to remain silent

JEL Classification: K10, K14, K00, K19, K20, K39, K40, K42, K49, Z00, I00

Open PDF in Browser Download This Paper

Date posted: March 1, 2012 ; Last revised: March 5, 2012

Suggested Citation

Duane, James J., The Right to Remain Silent: A New Answer to an Old Question (February 2, 2012). Criminal Justice, Vol. 25, No. 2, 2010. Available at SSRN: https://ssrn.com/abstract=1998119

Contact Information

James Duane (Contact Author)
Regent University - School of Law ( email )
1000 Regent University Drive
Virginia Beach, VA 23464
United States
HOME PAGE: http://www.regent.edu/duane
Feedback to SSRN

Paper statistics
Abstract Views: 3,865
Downloads: 1,305
Download Rank: 10,749