Law Commons^™

The Right To Silence Helps The Innocent: A Game-Theoretic Analysis Of The Fifth Amendment Privilege, Alex Stein, Daniel Seidmann

Alex Stein

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 …