Introduction

Silence and the Fifth Amendment

Introduction

A defendant at the close of the prosecution's case must decide whether to take the stand, knowing the jury will draw some impression from whichever choice follows. A witness ordered by a court to answer a question or go to jail faces a related choice between speaking and suffering a penalty. The Self-Incrimination Clause of the Fifth Amendment addresses both situations: no person "shall be compelled in any criminal case to be a witness against himself."¹ That sentence of the Amendment sits alongside other guarantees, including grand jury indictment, protection against double jeopardy, due process, and just compensation for takings. Those belong to other readings, and this reading follows only the privilege against self-incrimination, the right to decline to supply testimony that could be used to convict oneself.

Two questions organize the lesson. The first is a threshold question: does the privilege apply to this person, in this proceeding, and against this government? The clause is short, and its words do not say which proceedings count as a "criminal case" or which governments, state or federal, must honor the guarantee, so those boundaries have to be worked out before the privilege can do anything for a particular speaker. The second question arises only after the first is answered in the speaker's favor: if the person stays silent, may the prosecution or the court treat that silence as evidence of guilt? The question matters because a privilege that could be exercised only at the price of an adverse inference would give little protection. A jury told that an innocent person would have spoken has been invited to punish the very choice the clause appears to secure.

The answer to the second question can also depend on when the silence occurred, since silence at trial and silence earlier in the encounter with the police do not necessarily rest on the same footing. The lesson therefore takes the two questions in order, settling who may claim the privilege and how it is claimed before turning to the ways silence may and may not be used against the person who kept it. It begins with the guarantee itself, looking closely at what the clause protects and why it was written to protect it.