"You Have the Right to Remain Silent": A Case for the Use of Silence as Substantive Proof of the Criminal Defendant's Guilt

Abstract

A fundamental canon of criminal justice demands that the government produce evidence against the accused “by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” To effectuate this promise, the Fifth Amendment’s Self-Incrimination Clause provides that, “[n]o person shall . . . be compelled in any criminal case to be a witness against himself.” The core protection guaranteed by this clause prohibits the government from compelling a defendant to bear witness against himself at his own criminal trial. The criminal trial, and not the government’s investigation of crime, is the bailiwick of the clause’s proscriptions. To perfect the protection afforded by the Fifth Amendment, however, the Court has allowed a person to invoke the privilege against self-incrimination before his criminal trial, but only when his answers in response to official questions might incriminate him in future criminal proceedings. This rule stems from the observation that “an inability to protect the right at one stage of a proceeding may make its invocation useless at a later stage.”