Law Commons^™

Methinks The Lady Doth Protest Too Little: Reassessing The Probative Value Of Silence, Mikah K. Story Thompson

Mikah K. Story Thompson

This article takes a fresh look at why individuals remain silent in the face of accusations by law enforcement. Traditionally, many courts have found that a defendant’s failure to protest her innocence reflects one of three things: (1) that the defendant has manifested her assent to the accusation by not responding; (2) that the defendant’s silence is a prior statement inconsistent with any testimony proclaiming innocence at trial; or (3) that the silence is substantive evidence of the defendant’s guilt. This article posits that a defendant’s silence actually means very little. Social science research regarding the possible meanings of silence …