The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege

Harvard Law Review, Vol. 114, pp. 430-510, 2000

81 Pages Posted: 10 Jul 2001 Last revised: 5 Sep 2014

See all articles by Alex Stein

Alex Stein

Israel Supreme Court

Daniel J. Seidmann

University of Nottingham - School of Economics

Abstract

This Article develops a consequentialist game-theoretic perspective for understanding the right to silence. By applying this perspective, the Article reveals that the conventional perception of the right to silence, as impeding the search for truth and thus helping criminals alone, is mistaken. The Article demonstrates that the right to silence can help triers of fact to distinguish between factually innocent and guilty suspects and defendants. This is achieved by an important feature of the right to silence which this Article brings to the fore: a criminal's self-interested response to questioning can impose externalities (in the form of wrongful conviction) on innocent suspects and defendants who tell the truth but cannot corroborate their responses. Absent a right, criminals would make false exculpatory statements if they believed that their lies were unlikely to be exposed; and, knowing criminals' incentives, the trier of fact would rationally discount the probative value of uncorroborated exculpatory statements, at the expense of some unfortunate innocents who cannot corroborate their true exculpatory stories. By contrast, neither pooling nor the ensuing wrongful convictions would then occur were a right available: for as Bentham famously noted, innocents would still tell the truth, whereas criminals would separate by rationally exercising the right. The Article also demonstrates that this game-theoretic analysis of the right to silence is supported by the existing empirical data. There is therefore a strong case for the right to silence, which should be set against current attempts to curtail or abolish it.

The right to silence would only operate in this way in legal systems which observe the proof-beyond-all-reasonable-doubt requirement. Criminals choose to exercise an available right because lies told in court or during police interrogation are amenable to refutation, whereas silence can help a guilty defendant to obtain an acquittal based on a reasonable doubt.

This Article also demonstrates that its rationale for the right to silence has a strong explanatory capacity. This rationale outscores its competitors in both justifying and coherently explaining each branch of the Fifth Amendment jurisprudence. The proposed rationale is therefore not only normatively sound, but is also efficacious in its descriptive role.

Keywords: Criminal law, criminal procedure, evidence, self-incrimination, fifth amendment, adverse inferences, game theory, pooling, market for lemons, anti-pooling devices

Suggested Citation

Stein, Alex and Seidmann, Daniel J., The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege. Harvard Law Review, Vol. 114, pp. 430-510, 2000. Available at SSRN: https://ssrn.com/abstract=271429 or http://dx.doi.org/10.2139/ssrn.271429

Alex Stein (Contact Author)

Israel Supreme Court ( email )

Sha'arei Mishpat Street
Jerusalem, 9195001
Israel
972-2-6759743 (Phone)

Daniel J. Seidmann

University of Nottingham - School of Economics ( email )

University Park
Nottingham, NG7 2RD
United Kingdom

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