The Right to Remain Silent Helps Only the Guilty

Abstract

In a recent issue of the Harvard Law Review, Professors Daniel Seidmann and Alex Stein argue that the Fifth Amendment privilege against self-incrimination helps the innocent. It does so, they contend, by encouraging the guilty to remain silent instead of concocting false alibis. Because juries know that the guilty will remain silent, Seidmann and Stein claim, juries will believe the alibis of the innocent at trial. Their argument rests on a game-theoretic account of how rational defendants should act during interrogation to maximize their chances of success at trial.

This Essay critiques Seidmann and Stein's article. Seidmann and Stein's elegant game-theoretic construct avails them little because their premises, methodology, and conclusion do not mirror reality. Though their theory predicts that rational suspects will remain silent, roughly eighty to ninety percent of suspects talk to the police. Seidmann and Stein acknowledge this fact but dismiss it as irrational behavior, because in their view rational suspects would remain silent in preparation for trial. By doing so, they succumb to the temptation to ignore messy facts that do not fit their neat theoretical model. And they, like most criminal procedure scholars, mistakenly view trials as the center of the universe and assume that rational suspects care mainly about maximizing their chances of success at trial. In fact, for most suspects trial is not a realistic option; as this Essay explains, most would prefer either to lie and throw police off the scent or confess and cooperate with the police. In short, Seidmann and Stein err in viewing interrogation as a mere prelude to the inevitable trial and focusing on the latter.

Keywords: Seidmann, Stein, criminal procedure, right to remain silent, Fifth Amendment, privilege against self-incrimination, Miranda, innocent, interrogation, questioning

JEL Classification: K14, K4