Substantive and Procedural Silence

62 Pages Posted: 14 Jun 2016 Last revised: 16 Jun 2019

See all articles by Erin L. Sheley

Erin L. Sheley

California Western School of Law

Date Written: June 10, 2016


Perceptions of the procedural fairness of the criminal justice system turn on whether it gives individuals and communities a “voice,” or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases. Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim’s silence and the defendant’s across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive purposes of punishment, particularly in a world where punishment so frequently turns on the outcome of plea negotiations. Such an effort requires us to recognize a distinction between procedural silence, which is grounded in the individual rights of each party, and what should be understood as substantive silence, which can form part of both the definition of criminal conduct on the front end and, on the back end, of the judgment and sentence in a particular case. This article has two purposes. One, it provides the first full taxonomy of the role of silence in the criminal law and identifies the key interactions between procedural and substantive silence. And, two, it offers normative suggestions — particularly to prosecutors — for managing silence in a way that will better achieve justice in light of the cumulative relationship between substance and procedure.

Keywords: Criminal Law, Criminal Procedure, Victim Impact Statements, Fifth Amendment, Sentencing

Suggested Citation

Sheley, Erin L., Substantive and Procedural Silence (June 10, 2016). Tennessee Law Review, Volume 84, 2017, Available at SSRN:

Erin L. Sheley (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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