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

Abstract

Drafts of this Article were presented at John M. Olin Law & Economics Seminar held by the University of California at Berkeley School of Law, at a criminal justice workshop held by the Nottingham University Faculty of Law, at the Second World Conference on Evidence in Litigation (Amsterdam, 1999) and at faculty workshops and seminars held by the University of British Columbia Economics Department, University of Connecticut School of Law, Fordham University School of Law, Hebrew University of Jerusalem Faculty of Law, Northwestern University Economics Department, Tel-Aviv University Faculty of Law, Economics Department of University College London, Washington University Economics Department and Benjamin N. Cardozo School of Law, Yeshiva University. We are grateful to all participants in these events. Thanks are also due to Tom Baker, Paul Beaudry, Paul Cassell, Robert Cooter, Eddie Dekel, Melvin Eisenberg, Malcolm Feeley, Jesse Fried, David Gilo, Edna Hagler-Kaplan, Alon Harel, Jackie Hodgson, Anat Horovitz, Kyron Huigens, Arthur Jacobson, Richard Markovits, Megan McCarthy, John McGinnis, Chandra Miller Fienen, the late Ian Molho, Gideon Parchomovsky, Roger Park, Richard Posner, Dan Richmond, Paul Roberts, Michel Rosenfeld, Jeanne Schroeder, Yoram Shachar, Peter Tillers, Gordon Van Kessel, Charles Yablon, Omri Yadlin, Asher Wolinsky, Ben Zipursky and Adrian Zuckerman for invaluable conversations and other help, and to Tal Ben-Nathan, Tami Kricheli and Tani Ratt for excellent research assistance. Special thanks go to Douglas Pravda, editor of 114 Harvard Law Review, for helping us to improve the manuscript prior to its publication. THE RIGHT TO SILENCE HELPS THE INNOCENT: