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: Stranger than Science Fiction: The Rise of A.I. Interrogation in the Dawn of Autonomous Robots and the Need for an Additional Protocol to the U.N. Convention Against Torture
- SIRI-OUSLY 2.0: What Artificial Intelligence Reveals About the First Amendment
- The Consequences of Disparate Policing: Evaluating Stop and Frisk as a Modality of Urban Policing
- Regulating Cumulative Risk
- Toward a Critical Race Theory of Evidence
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