A Peculiar Privilege in Historical Perspective
The Right to Remain Silent
Bibliographic Data
| ID | 5817066 |
|---|---|
| Authors | Albert W Alschuler (University of Chicago, corresponding author) |
| Year | 1996 |
| Volume | 94 |
| Issue | 8 |
| Pages | 2625-2625 |
| Publication date | 1996-08-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | Michigan Law Review (JOURNAL) |
| Journal identifiers | ISSN: 0026-2234 • E-ISSN: 1939-8557 |
| Publisher | JSTOR (PUBLISHER) |
| DOI | 10.2307/1289835 |
| OpenAlex | W295412904 |
| Language | EN |
| Citations received | 5 |
court that such silence is evidence of guilt,"' 0 focused the choice between the two competing interpretations more sharply than any other Supreme Court decision has.Justice Douglas's majority opinion in Griffin invoked the language of unconstitutional conditions, declaring that comment "is a penalty imposed by courts for exercising a constitutional privilege.It cuts down on the privilege by making its assertion costly.""Justice Stewart's dissenting opinion replied that "[c]ompulsion is the focus of the inquiry" and that "the Court in this case stretches the concept of compulsion beyond all reasonable bounds."12Although the majority and dissenting justices in Griffin divided over which view of the Fifth Amendment privilege to endorse, the Court's opinion in Miranda v. Arizona 3 the following year embraced both.The first Miranda warning -"You have a right to remain silent" -strongly indicated the Court's approval of the "right to silence" interpretation of the Fifth Amendment.So did the Court's expansive accusatorial rhetoric 4 and its demand for a knowing and intelligent 10. 380 U.S. at 615. 11. 380 U.S. at 614.The majority's reliance on the doctrine of unconstitutional conditions in Griffin was unnecessary.Rather than contend that prosecutorial comment burdens the exercise of a right to remain silent, the majority might have argued that comment on a defendant's silence violates the Fifth Amendment, pure and simple.When the defendant in Griffin refused to testify, the prosecutor invited a jury to infer this defendant's consciousness of guilt and his knowledge of incriminating circumstances.The prosecutor thus converted even a silent defendant into a source of evidence against himself.The defendant might have avoided an unfavorable inference by speaking, but if he had spoken, he would have been obliged to tell the truth.If the defendant were guilty, and possibly even if he were not, the truth would have been incriminating.The defendant in Griffin thus might have had no way to avoid incriminating himself; either his truthful speech or his silence would have been treated as evidence of guilt.Because the defendant lacked an alternative, he was compelled to become a witness of sorts against himself.Cf 380 U.S. at 613-14.Although this argument for the result in Griffin seems stronger than the argument based on the doctrine of unconstitutional conditions, both arguments depart from ordinary concepts of morality, sensible criminal justice policy, and the historic understanding of the Fifth Amendment privilege.The issue will be examined more fully in this article.12
| Citations per year | 0.19 |
|---|---|
| Citation span | 1999 - 2021 (23) |
| Highly cited | No |