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

Abstract

This Article develops a consequentialist game-theoretic perspective for understanding the right to silence. Professors Seidmann and Stein reveal that the conventional perception of the right to silencethat it impedes the search for truth and thus helps only criminalsis mistaken. Professors Seidmann and Stein demonstrate that the right to silence can help triers of fact to distinguish between innocent and guilty suspects and defendants. They argue that a guilty suspect'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 the right to silence, guilty suspects and defendants would make false exculpatory statements if they believed that their lies were unlikely to be exposed. Aware of these incentives, triers of fact would rationally discount the probative value of uncorroborated exculpatory statements at the expense of innocent defendants who could not corroborate their true exculpatory statements. Because the right to silence is available, innocent defendants still tell the truth while guilty defendants may rationally exercise the right. Thus, guilty defendants do not pool with innocent defendants by lying, and as a result, triers of fact do not wrongfully convict innocent defendants. Professors Seidmann and Stein contend that the existing empirical data support their game-theoretic analysis. Furthermore, In memory of Ian Molho.

The benefits of a right to silence for the innocent

“…Our model also supports the argument that innocent suspects indirectly benefit from a right to silence (Seidmann and Stein, 2000). We show that a right to silence benefits innocent suspects who choose to speak (in the presence of a right to silence) because it induces guilty suspects to remain silent, thereby decreasing the probability that innocent suspects whose statements are contradicted by evidence are wrongfully convicted.…”

“…In contrast, for innocent suspects, telling a truthful story to the police can only improve (or at least not worsen) their position. Once again, this observation may not apply to very special cases, which we ignore for lack of representativeness” (Seidmann and Stein, 2000). A more reasonable assumption, it seems, is that innocent suspects might be reluctant to tell a truthful story (or any story) if they did not trust their recollection or if they feared they might not be able to corroborate their story at trial.…”

On Silence, Sexuality and Skeletons: Reconceptualizing Narrative in Asylum Hearings

“…It was ambiguous, at certain points resistant and defiant, at others oppressive and foreclosing. Within law, there are specific circumstances when individuals can remain silent so as to not incriminate themselves (Seidmann and Stein, 2000). But outside of law and more broadly, silence's oppressive nature can be overwhelming.…”

Search, Seizure and (False?) Arrest: An Analysis of Fourth Amendment Remedies when Police can Plant Evidence

“…There is also a substantial economic literature on civil procedure, but little formal modeling of issues in criminal procedure. Exceptions include Miceli (1991) on the optimal standard of proof in criminal trials, Schrag and Scotchmer (1994) on the effects of rules excluding character evidence from criminal trials, and Seidmann and Stein (2000) and Seidmann (2003) on the Fifth Amendment privilege against self-incrimination. On a related issue, Daughety and Reinganum (1995) examine the effects of rules excluding the admission of evidence about pretrial settlement negotiations in civil trials.…”