In this invited reply to an article recently published in the Minnesota Law Review, we concentrate on explaining why we do not share that article’s underlying antipathy to the Fifth Amendment right to silence at trial. That antipathy, also frequently expressed by other commentators, is reflected in the article’s proposed rejection of Griffin v. California’s prohibition regarding adverse inferences from the defendant’s assertion of that right. The modern right to silence at trial, while perhaps more robust than framing-era practice, has emerged in a criminal justice system the scope and intrusiveness of which itself greatly exceeds framing-era experience. Griffin’s no-adverse-inference rule, and the right to silence at trial it helps to effectuate, are components of an interrelated cluster of protections, the centerpiece of which is the right to counsel, that reinforce the “test the prosecution” and “anti-inquisitorial” nature of today’s system. While neither theoretically tidy nor practically perfect, those protections at least offer a modicum of dignity which we believe many persons would want to have when faced with a powerful adversary in a dehumanizing process. Finally, we briefly note why we believe the purported benefits from the reforms proposed in Making Defendants Speak are illusory.
Volume 94 - No. 3
- Note: Big Enough To Matter: Whether Statistical Significance or Practical Significance Should Be the Test for Title VII Disparate Impact Claims
- Note: Of Mosquitoes, Adolescents, and Reproductive Rights: Public Health and Reproductive Risks in a Genomic Age
- Note: Payments on Debt After Discharge: When a Discharge Is Not Really a Discharge and the Limits of Taxpayer Recourse
- Inherent National Sovereignty Constitutionalism: An Original Understanding of the U.S. Constitution
- Reproduction Reconceived
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