Original Article:

by

Donald P. Judges† and Stephen J. Cribari‡

The key move in Sampsell-Jones’s article is not directly to challenge the norms underlying defendants’ rights, to which it gives scant attention and minimal content. Rather, it is to argue that, because government “neutrality between testimony and silence” is not possible, desirable, or constitutionally required,4 the question becomes “whether the current set of rules creates the proper mix of incentives and disincentives” in a “zero-sum game” between the constitutional right to testify on one side of the ledger and the constitutional right to remain silent on the other.5 The article proposes two sets of reforms to “make defendants speak.” To “punish” defendants more for refusing to testify, it would overrule the prohibition, set out in Griffin v. California,6 on adverse inferences from a defendant’s silence in a criminal proceeding.7 To “reward” them for testifying, it proposes two measures. The first would abandon the five-factor balancing test of Gordon v. United States,8 which has guided admissibility under Rule 609(a)(1)9 of prior felony convictions as impeachment evidence against defendants who testify in their own criminal trials.10 The second would abolish perjury enhancements under the Sentencing Guidelines’11 obstruction-of-justice provision for defendants who testify falsely under oath.12

 

Making Defendants Speak takes immediate aim at Griffin, which it finds flawed as a matter of theory, constitutional text, history, and policy; but its ultimate target is the right to remain silent at trial.13 We therefore concentrate most of our attention on a robust right to remain silent at trial. In Part I we argue that the right to remain silent at trial has emerged as part of a cluster of rights effectuating the modern “test the prosecution” approach to criminal procedure. The adverse inference, prohibited by Griffin, is inconsistent with that right. We suggest in Part II that more may be said on behalf of a robust right to silence, including a prohibition on adverse inferences, than its critics recognize. Finally, we briefly respond in Part III to several specific aspects of Making Defendants Speak. We suggest that its “zero-sum-game” perspective reflects flawed premises and reasoning and is more usefully regarded as a form of “exchange abolitionism,” the notion underlying the movement in England and Wales to permit adverse inferences from the accused’s silence. We also point out some problems in that article’s “accuracy,” “participation,” and “equity” arguments.

 

 

Making Defendants Speak’s historical critique of Griffin travels a well-worn path; and its challenge to Griffin’s reliance on unconstitutional conditions doctrine is both dependent on and undermined by its incentivization rationale. The article recites familiar originalist arguments about the historical meaning of “compulsion”—that adverse inference does not rise to the level of “the racks and oaths forced by the power of law.”14 Griffin is wrong, this critique runs, because the adverse inference was not a harm the Framers’ generation would have taken seriously.15 The implication of this position goes beyond Griffin to embrace a minimalist interpretation of the Fifth Amendment which largely excludes the right to remain silent. Albert Alschuler, for example, in proposing that the United States more or less “follow England’s lead” and abandon both Griffin and Miranda, has argued on both policy and historical grounds that the United States Supreme Court went astray when it recognized a right to remain silent in the Fifth Amendment at all, as opposed only to “a safeguard against torture and other forms of coercive interrogation.”16 And it was only a matter of time before someone invoked the threat of terrorism alongside the historical critique in contending for a narrow interpretation of the Fifth Amendment which would exclude Griffin.17

 

To us, the central problem is not situating Griffin in the modern right to remain silent at trial. Griffin’s no-adverse-inference rule is woven neatly into the fabric of that right. Rather, the problem is finding a robust right to remain silent in the Fifth Amendment. In the absence of such a right, Griffin is of course moot. If there is such a right, the adverse inference prohibited by Griffin violates it directly—quite apart from the “penalty” construct that opinion invokes and to which Making Defendants Speak devotes so much energy attempting to refute—because through it the prosecution and judge in effect will have transformed the defendant’s silence into evidence against him.18 Griffin’s rule  thus effectuates the Fifth Amendment not only because the adverse inference seeks to induce forfeiture of the right to remain silent at trial, but also because it seeks to employ the exercise of that right as implicit testimonial evidence against the accused. If the Fifth Amendment contains a right to silence at trial, allowing an adverse inference is incompatible with that right.

 

Moreover, Making Defendants Speak is at odds with itself even with respect to its incentivization paradigm. It criticizes Griffin’s inference-as-penalty reasoning on the grounds that “there is no neutral, determinate way to classify what counts as a ‘penalty.’”19 Yet its entire project is explicitly centered around “punishing” the defendant for remaining silent. The article seems to want it both waysit attempts to refute the theoretical implications of the result it seeks to accomplish in fact. If, as the article both assumes and advocates, abolition of Griffin does “punish” the defendant in fact for exercising the right to remain silent, then it is difficult to follow the logic by which the doctrinal consequences of that result may be denied.20

 

In any event, the underlying problem is that an interpretation of the Fifth Amendment that includes a robust right to remain silent presents a constitutional conundrum. Its central role in today’s criminal justice system is to provide some actual protection for a defendant’s choice not to serve as a testimonial resource in prosecution against him; but making defendants serve as testimonial resources (including through adverse inference) is what prevailing Anglo-American criminal practice in the seventeenth and eighteenth centuries was largely about.21 The difficulty is that the criminal justice systems in both America and England have changed dramatically in this fundamental respect, from effectively requiring defendants to speak to preventing them from being required to do so.22 The strict originalist interpretation of the Fifth Amendment rejects the constitutional relevance of the law’s development since its adoption, while the modern interpretation finds scant support in the practices and understandings prevailing in the very different system of its adoption.

 

This Essay, rather than choosing between the Fifth Amendment as palimpsest or as tabula rasa, suggests instead that it is especially appropriate in the case of the Fifth Amendment’s protection against self-incrimination to take deliberate account of this sea change in criminal procedure and thereby to give meaningful content to that protection beyond founding-era practice. We begin by summarizing now-familiar scholarship concerning the origins of the modern right to remain silent at trial and explaining how we believe a robust conception of the right, which includes Griffin’s no-adverse-inference rule, can be reconciled with that historical account.

Our proposed reconciliation also suggests why Making Defendant Speak’s focus on the defendant’s right to testify is misplaced. It is true that in a literal sense the right to remain silent and the right to speak at trial are antipodal in that exercise of one displaces the other. As a practical matter, however, the important corollary of the right to remain silent is generally not the defendant’s right to speak for himself at trial but the right to have someone else speak for him. It was the emergence of an active and potent role for defense counsel in putting the prosecution to its burden of proof through a real adversarial process to which more recent scholarship attributes the origins of the modern right to remain silent. Today, a robust right to remain silent assumes a central role in conjunction with the right to counsel and the prosecution’s burden of proof beyond a reasonable doubt in an adversarial system. Griffin, so far as it goes, reinforces that constellation of protections.

 

 

If relatively recent scholarship concerning the origins of the right to remain silent is valid, the problem with Griffin is not Griffin, it is the Fifth Amendment. That work has challenged the traditional view that the modern right originates in opposition to the oath ex officio and the Ecclesiastical courts or more generally to resistance to encroachment by the European inquisitorial model.23 John Langbein shows that the well-established common law practice in ordinary criminal trials in England—which practice the colonists brought and adapted to British North America and which largely persisted as a practical matter both before and immediately after the adoption of the Fifth Amendment24—was dominated by what he has characterized as the “accused speaks” approach to criminal trials.25 As Langbein put it, “[t]he logic of the early modern criminal trial was to pressure the accused into serving as a testimonial resource.”26 He has argued that the modern right to remain silent at trial emerged not from the constitutional struggles in seventeenth-century England and John Lilburne’s invocation of the principle reflected in the maxim nemo tenetur seipsum prodere27 before the Star Chamber, but from a “profound reordering” of the criminal trial process in the late eighteenth and early nineteenth centuries away from the “accused speaks” model and toward the “testing the prosecution” model.28 The central figure in this reordering, whose emerging role was both required and made possible by it, wasdefense counsel.

 

Langbein has argued that foreclosure of an effective role for defense counsel formed the “bedrock principle” of the “accused speaks” trial, the primary justifications for which find a modern echo in works such as Making Defendants Speak: (1) that innocent defendants are their own best advocates, and (2) that guilty defendants’ self-incrimination is a needed testimonial resource.29 Other aspects of the system—including pretrial confinement, limitations on defendants’ ability to compel witnesses to testify for the defense and on even voluntary defense witnesses’ testimony, a poorly formulated and weakly realized prosecutorial burden and standard of proof, and constraints on defendants’ pretrial preparation—all combined to leave defendants little choice but to speak at trial:

 

 

The pressure to speak obtained routinely in pretrial examination of defendants by magistrates under the Marian Committal Statute of 1555,31 the purpose of which was “to collect only prosecution evidence;” the defendant was “expected to answer” the magistrate’s questions and any refusal to do so would be reported by the magistrate at trial.32 The pressure to speak continued at trial, which as a practical matter usually was more about whether the defendant would be convicted of a capital crime or some lesser offense (or would obtain a judicial recommendation to the crown for clemency) than it was about ultimate guilt or innocence.33 The “accused speaks” model apparently was effective: assertion of a privilege against self-incrimination by defendants in ordinary criminal trials in England appears to have been virtually non-existent.34

 

Eben Moglen’s study has found that the “accused speaks” model described by Langbein “represented the common core of English criminal procedure in America during the first century of settlement.”35 If anything, for a number of reasons (including scarcity of lawyers and ideological antipathy towards them) defense counsel’s role in early American criminal trials was even more circumscribed.36 Also, as a practical matter, “sworn or unsworn, defense witnesses at trial generally were scarce commodities.”37 And pretrial examination before magistrates, following the Marian Committal Statute process, drove toward self-incrimination.38 “Colonial American criminal justice depended upon self-incrimination in practice precisely because the basic design of the system assumed it would.”39 The doctrine of nemo tenetur prodere seipsum did have some traction in attitudes about examination of witnesses and the accused by the authorities and on the use of violence (including threat of spiritual violence through the oath ex officio)—although physical violence apparently was not completely prohibited but instead calibrated by the doctrine.40 And the abhorrence of oaths was circumvented by the simple expedient of examining the accused unsworn.41 Nevertheless, Moglen concluded, as a practical matter:

 

 

This state of affairs, he found, reflected social conditions at the time—a geographically dispersed population, scant prosecutorial and judicial resources, social and economic stratification disadvantaging the itinerant and the indigent, a minimal or non-existent defense bar, and increasing social disorder in the decades immediately preceding the Revolution—which combined to increase reliance on summary jurisdiction of lay magistrates and further promote the “accused speaks” model.43

 

This recital raises the question of how to reconcile the facially broad state and federal constitutional provisions related to criminal procedure (including nemo tenetur) embraced by Revolutionary Americans with the apparently conflicting practices then prevailing.44 Moglen’s account is two-fold. First, those provisions were seen as protecting not against current criminal practices but against rhetorically powerful but even then-dated images such as the Star Chamber and the potential future adoption of “innovative” or “foreign” practices; they were measures conservatory rather than reformatory of extant legal structures.45 Second, he argued that those constitutional provisions converged on the lay jury as the ultimate protection against government overreaching: “these procedural guarantees, including the privilege against self-incrimination, were part of a cluster of legal rules, conceived not primarily as independent, free-standing rights, but rather as part of the constitutional system for protecting all rights by ensuring that government activity met the fundamental check of juries subject to law.”46

 

 

The foregoing account has been recited, along with criticism of the conceptual and moral underpinnings of the right to silence, in support of a more historically faithful interpretation of the Fifth Amendment that would allow a return to those earlier practices, including adverse inferences from the accused’s silence in pretrial examinations and at trial.47 We think, however, that it can also point the other way. It provides a benchmark against which to gauge just how profoundly our criminal justice system—and our understanding of the Fifth Amendment—has changed, and that transformation itself suggests that the intuitions underlying the right to silence may be larger than the sum of its many critics.

 

While neither yesterday’s nor today’s systems completely fit Langbein’s respective labels, it is clear that we have moved quite far from an “accused speaks” toward a “test the prosecution” model largely in the ways Langbein and Moglen identify. If the extent to which historical practice reflected the “accused speaks” model is taken as a measure of founding-era acceptance of its normative precepts, then it would seem that the pervasiveness of today’s “test the prosecution” approach indicates the contemporary dominance of the latter approach’s premises. And if the central figure in that transformation is defense counsel, then that figure’s ubiquity and recognition as foundational to the modern adversary system marks the extent of the transformation. Although the Court has vacillated, sometimes importantly so, on the particulars of the right to counsel,48 that right nevertheless receives both rhetorical recognition and substantial protection, and the unrepresented criminal defendant in all but the most minor of cases is a rare exception.

 

The right to counsel is a fundamental fair-trial right,49 the denial of which is per se harmful error,50 for without a lawyer to assist him, the confrontation between defendant and accusers can hardly be called fair. “[L]awyers in criminal courts are necessities, not luxuries.”51 The right appertains whenever the defendant is subjected to actual imprisonment,52 whether charged with a petty offense, a misdemeanor, or a felony,53 and it applies not only at trial but during the pre-trial stage “when consultation, thoroughgoing investigation and preparation [are] vitally important.”54 In fact, the pre-trial stage may present even greater dangers for the defendant than the trial itself.55

 

The fundamental, essential role of counsel is recognized by related Sixth Amendment cases as well as in other contexts. The Court’s recent Confrontation Clause cases recognize that a fair trial is not one that reaches an accurate result in a truth-seeking process but, rather, one that reaches a fair result in an adversarial system.56 The Sixth Amendment “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”57 The Court also relied on the role of counsel in abandoning a seventy-year-old evidentiary tradition of deferring to scientific or other specialized sources for a determination of when an expert witness might offer opinion testimony, replacing it with a more traditional evidentiary approach that relies on “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof [as] the traditional and appropriate means of attacking shaky but admissible evidence.”58 And where expert testimony is critical, the defendant has a due process right not only to cross-examine the state’s expert, but also to an expert’s assistance “in evaluation, preparation, and presentation of the defense”59 in an adversarial system where counsel, not the defendant, tests the government’s evidence.

 

The right to counsel is explicitly and implicitly linked to the protections against self-incrimination under the Fifth Amendment. In both the state and federal confession cases that led up to Miranda,60 there was an element of deprivation of counsel that troubled the Court.61 When the Court applied the Fifth Amendment Self-Incrimination Clause to the states, it noted that ours is an accusatorial, not inquisitorial, system, in which a person has the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining, for such silence.”62 Escobedo v. Illinois,63 the Court’s last gasp at avoiding Miranda, tried to “tease back” the Sixth Amendment to reach the problem of incommunicado questioning. With Miranda, however, the Court finally recognized what it had been wrestling with in various, disparate contexts64: that the right to silence was meaningless unless the compulsion inherent in custodial interrogation were to be diffused by warning the suspect not only of his right to silence, but of his right to an attorney to help make the right to silence meaningful.65 In the four decades since Miranda, the Court’s jurisprudence has been inconsistent to say the least;66 but if the Court seriously wanted to rethink the involvement of, and reliance on, defense counsel in the criminal justice system, that opportunity came with Dickerson v. United States.67 Rather than upholding Congress’s attempt to overrule Miranda two years after the case was decided,68 the Court instead found Miranda to be part of our national culture and a constitutional decision that Congress is without power to reject.69

 

Both the right to counsel and the privilege against self-incrimination reinforce the accusatory and adversarial nature of the criminal justice system. Thus, as David Sklansky recently put it, “[a]nti-inquisitorialism” is “a broad and enduring theme of American criminal procedure.”70 At the conclusion of its 2008 term,71 the Supreme Court reaffirmed its view that ours is an accusatorial, confrontational system of criminal justice in which the government has the burden of proving guilt beyond a reasonable doubt when it chooses to exercise the power to punish. “[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”72 The Court’s rejection of the complaint that this “may make the prosecution of criminals more burdensome”73—a complaint frequently found in critiques of Miranda and Griffin—is but the latest pronouncement in a line of cases of which In re Winship74 is the foremost articulation of the principle. All these cases, taken together or alone, stand for the principle that when the government seeks to punish, it must prove each and every element of the offense charged beyond a reasonable doubt, in an adversarial system in which the defendant is represented by counsel who will test the government’s case.

 

In summary, whatever the normative underpinnings of the right to silence, the modern network of rights comprising today’s “test the prosecution” criminal justice system recognizes—indeed necessitates—its presence just as potently as the network of practices comprising the “accused speaks” system effectuated its practical absence. And if the cluster of protections of which it is a part takes the Fifth Amendment beyond the scope contemplated by its Framers, it does so in the context of a criminal justice system, and more generally an administrative and bureaucratic state, which itself vastly exceeds anything familiar to them or their English counterparts.75 It is difficult to grasp the extent of those changes. The industrial, administrative, and cyber revolutions have expanded government’s ability to criminalize, investigate, monitor, prosecute, convict, and incarcerate citizens to an extent that surely would have staggered and probably horrified founding-era imaginations.76

 

The extensive and complex web of today’s federal, state, and local criminal laws, and malum prohibitum regulatory provisions enforced by criminal sanctions, would have been unimaginable in the eighteenth century.77 Indeed, several scholars have located the origins of the modern Fifth Amendment right to silence in the late-nineteenth century’s expanding federal regulatory presence.78 Prosecutorial, defense, and judicial resources—which were relatively scarce in colonial and revolutionary America79—are now relatively abundant and deeply institutionalized. And the entire process has managed to achieve an incarceration rate that is one of the highest in the world.

 

“The most important conclusion” to be drawn about colonial-era crime throughout British North America, especially crimes against person and property, “is that there was very little of it.”80 Social and economic conditions—small, isolated populations living primarily in villages and towns, with little vagabondage, low unemployment, adequate subsistence, and relatively little economic stratification—all likely contributed to the low rate of such crime.81 And the objects of the criminal justice system changed along with social conditions. In Massachusetts, for example, “crimes against morality dominated in the colonial era,”82 but by the post-revolutionary period, as wealth and populations increased and became more concentrated and stratified, property crimes and social-order related offenses came to dominate.83 The localized and parochial nature of community life, preoccupation with sin and heterodoxy, and the absence of organized law enforcement authority meant that in the New England colonies, social control derived from “intense surveillance by neighbors,” rather than “patrol by a public police,”84 thus enforcing consensus and conformist norms.85

 

Whereas it seems unlikely that most founding-era citizens had personal encounters with law enforcement officials, today such encounters are commonplace. The police presence we take for granted (or at least in stride) today did not begin to emerge in the United States or England until the nineteenth century. As Carol Steiker has observed:

 

 

In comparison to the eighteenth century, the police today are virtually everywhere, impacting the lives of almost everyone by their very presence, and often their direct actions.87

 

Not only has police presence become substantially more pervasive in general, but the potential consequences of speaking to police have also become more complicated in two particular ways. First, “[a] crude conception of guilt or innocence, according to which the suspect either ‘did it’ or ‘didn’t do it’ has tended to underpin the debate about the right to silence.”88 Some offenses, however, are defined in terms of mental states “which separate them by a hairsbreadth from innocent conduct” and so the police interview not only can uncover crimes, but in a sense can also help to “create them.”89 Second, the “current prosecutorial arsenal” concerning perjury and related offenses exceeds its common law antecedents.90 Under the most widely used federal statute, 18 U.S.C. § 1001, even a minimal denial of guilt—the so-called “exculpatory no”—can be the basis for prosecution.91 As Justice Ginsburg has noted, this result gives prosecutors tremendous power to “manufacture crimes” (especially given the frequency of informal, uncounseled, and unwarned interviews of individuals by government agents).92

 

It is by now a familiar if not entirely uncontroversial process for the content of a constitutional protection to evolve beyond the particular scope its framers would have endorsed, especially when conditions have changed in pertinent and important ways.93 Application of that process to the present problem would seem especially appropriate. To the extent that critics of a robust right to silence base their position on an interpretation of the Fifth Amendment limited to founding-era understandings, they are insisting on a return to the kind of “accused speaks” model which obtained in a world that no longer exists and which the gradual adoption of the “test the prosecution” approach has displaced. And that displacement has resulted from invigoration of a “cluster of legal rules” oriented not so much around the lay jury in this age of plea bargaining94 as around the requirement that the government prove its case. Superimposition of the earlier, much narrower interpretation on a vastly expanded and intrusive criminal justice system, without regard for such pervasive legal and social change, seems anachronistic and misplaced.

 

 

In view of these two important developments—the emergence of the “test the prosecution” model and government’s vastly increased capacity and willingness to mobilize law-enforcement resources against its citizens—the intuitions expressed in Murphy v. Waterfront Commission,95 while perhaps hyperbolic, do not sound so out-of-place. Those “fundamental values” and “noble aspirations” include: protection of the accused from the “cruel trilemma of self-accusation, perjury, or contempt;” “our preference for an accusatorial rather than an inquisitorial system;” fear of inhumane and abusive interrogation; a “fair play” norm requiring the government to leave the individual alone unless there is good cause to disturb him or her and “requiring the government in its contest with the individual to shoulder the entire load;” respect for “inviolability of the human personality” and a right to privacy; and protection of innocent defendants.96 Yet the right to silence has been a heavily criticized doctrine.

 

The usual approach is to consider the right in isolation and in the abstract, and to dissect each particular rationale. As David Dolinko put it in his comprehensive critique, “[a]ppeal to an unanalyzable intuition . . . is simply unacceptable as support for the privilege against self-incrimination.”97 He has organized the putative justifications into “systemic” and “individual” rationales.98 Among the justifications that he seeks to repudiate is the systemic goal of “imposing on the government the entire burden of proving guilt in a criminal case.”99 And among the “individual rationales” that he finds unpersuasive are the privacy, dignity, and autonomy arguments.100 A common thread running through criticisms of these justifications is that a right to silence provides incomplete protection to any of the interests they reflect. For example, the privilege does not force the government to “shoulder the entire load”101 because government may still introduce physical evidence such as blood samples, fingerprints, handwriting and voice exemplars, and the results of eyewitness identification procedures, all involuntarily obtained from the accused.102 Whatever choices it protects against are not obviously more or less “cruel” than many others it does not preclude.103 The privilege neither protects a recognizably distinct privacy interest nor precludes a wide array of intrusions and, in any event, constitutional privacy protections are ordinarily subjected to a balancing test which considers the government’s need.104 In other words, the right to silence, disliked in practice for its perceived result of shielding the guilty and depriving the prosecution of needed evidence, is criticized in theory for the protection it fails to effectively provide.

 

But perhaps more might be said in this context on behalf of “intuition” (which, if not unanalyzed, at least is not overanalyzed), and less in favor of objections based on underinclusiveness and overinclusiveness. Underinclusiveness objections seem more appropriately deployed in challenges to choices made by the authorities in the assertions of governmental power, rather than to norms underlying rights claims. A government choice only minimally to pursue a particular end is some evidence that the particular end in question is not very important105 or sincerely sought.106 This reasoning is most familiar in cases applying antidiscrimination principles and seeks, as Justice O’Connor famously put it, to “smoke out” impermissible purposes.107 The intensity of the scrutiny of fit is a function of the degree of perceived risk to the norms that might constrain the government action in question. But the privilege’s critics surely do not mean that the Court’s rejection of Armando Schmerber’s Fifth Amendment claim108 calls into question the sincerity of Edward Dean Griffin’s claim. Rather, the critics seem to mean that because the Court has permitted the intrusions it has, no meaningful portion of the rights-domain remains to be protected or that the rights-domain itself is misconceived.

 

We see several problems with that proposition. First, even assuming that the Court has allowed a large portion of the interest to be compromised, such result does not necessarily disprove the existence of the interest itself. The Court’s reasoning in denying claims could be flawed.109 Second, the Court’s choices do not necessarily mean that no meaningful residuum of protected domain remains. The norms captured by capacious labels such as “privacy,” “autonomy,” or “dignity”110 are complex and variegated such that the Court’s rejection of a part would hardly seem to constitute negation of the whole. As we briefly suggest below, there is recognizable and meaningful content, even if not theoretically tidy, to a right not to testify at trial and to preclude prosecutorial comment and judicial instruction on its exercise.111 These difficulties with underinclusiveness reasoning are illustrated by its application to the Court’s Fourth Amendment jurisprudence, which is hardly a model of doctrinal clarity. For example, the Court’s reasoning in New Jersey v. T.L.O., which found that a full-blown warrantless seizure and search based only on reasonable suspicion adequately protected the right to privacy in the school context,112 is itself open to question on its own terms and in any event does not exhaust the entire domain of “privacy” or “reasonableness.”113

 

The overinclusiveness objection—that the privilege fails to yield through a balancing test to government need—includes at least two flaws. An obvious one is that the text of the Fifth Amendment, in contrast to that of the Fourth, does not include a reasonableness element.114 Another is that the objection misapprehends the nature of privileges. They are indeed subject to a kind of categorical balancing because their application is circumscribed, as the underinclusiveness critique is at pains to point out.115 But case-by-case balancing is generally not appropriate with respect to privileges. For those that protect confidential relationships, such balancing would “eviscerate the effectiveness of the privilege.”116 For the Fifth Amendment, as events since September 11, 2001, demonstrate, the risk that case-by-case balancing would effectively swallow the rule is more than speculative.117

 

Nor is it clear to us that the intuitions attributable to a right to silence are necessarily so opaque or anomalous to warrant such “strict scrutiny.”118 A point of departure in the literature critical of the right to silence is the observation that it defies, as Judge Friendly put it, “notions of decent conduct generally accepted in life outside the court room.”119 To Judge Friendly, this point distinguishes the Fifth Amendment privilege from most others recognized by law, which are based on valued relations (such as the husband-wife, lawyer-client, doctor-patient, and priest-penitent privileges).120 Kent Greenawalt has attempted to bridge that perceived disparity by observing that in their ordinary relations, people do not expect to be obligated to account for their conduct to one another, unless the relations are especially close, or the basis for inquiry or suspicion is especially strong.121 Dolinko quotes Friendly as an example of the “consensus” view that the right to silence is morally perverse, and sees in the Greenawalt principle a lever for prying the privilege away from criminal defendants who, after all, are not in close relation to the state, and against whom there is almost always more than a slender basis for suspicion.122 This latter point provided the moral ground for Alschuler’s proposal to overrule Griffin and return to something like the Marian Committal Statute process.123

 

But what would things look like if we turned the telescope around and, as we should at the rights-recognition stage, viewed the matter from the defendant’s perspective? As indicated above, the robust right to silence in general, and Griffin in particular, are not some dusty vestige of an outmoded legal past, but are part of a cluster of developments to emerge in today’s criminal justice system. One would expect that the intuitions it reflects are compatible with, rather than antithetical to, modern sensibilities. And so they are, if one keeps in mind the nature of the relations involved and views them from the defendant’s perspective.

 

Friendly’s objection to the privilege124 and Greenawalt’s sophisticated attempt to justify a limited scope for it125 would impose the moral understandings and expectations of interpersonal relations on the uniquely inhuman relation between the accused and the state. The mistake in that move underscores our point. The relational norms of reciprocal care and regard between actual people simply do not obtain with the state, especially when it seeks to punish.126 The state is not a person who has feelings we ought to consider at all, or who will consider any actual person’s feelings in return, and it is an error to premise any argument on such an analogy.127 The state itself—even if represented by actual people who may be decent and humane individuals—is an inhuman, faceless, unfeeling, often voracious and potentially malignant entity which is precisely why relations with it are always a matter of rights and power rather than care and respect. The very notion of constitutional government presupposes this point. It is naive at best and dangerous at worst to draw, as does Friendly, an analogy between a prosecutor and the loving and forgiving parent who is expected to have his or her child’s best interests at heart.128 In any event, even Judge Friendly’s intuitions got the better of his analysis in the end. After soundly ridiculing the Murphy claims on behalf of the privilege, he noted that many defendants are “uneducated, unfortunate persons, frightened by their predicament” and opted to retain much of the current privilege’s protections, including its prohibition on adverse comment.129

 

Murphy’s much-maligned intuitions, even if overstated, may come closer to capturing the peculiar circumstances of criminal prosecution. The right to silence, if nothing else, preserves one small refuge of dignity for the accused and imposes one relatively modest constraint on governmental power.130 We believe this protection is more than inconsequential, even if modest in practical effect and conceptually indefinite. In a criminal prosecution the state seeks to deploy whatever resources it deems worthwhile for the infliction of punishment on the accused. The ultimate goal may be justice, however well—or ill—conceived and realized, but as a practical matter the immediate aim is conviction and punishment; and whatever protections the accused can expect throughout the entire dehumanizing process derive not from care but from rights. It does not seem to us to flout ordinary moral understandings to recognize a right in someone to refuse to cooperate by providing a public account of his actions to a vastly more powerful and inhuman adversary, itself speaking exclusively through counsel, which is specifically bent on hurting him. To the contrary, it seems of a piece with an understanding of the entire process which, while allowing the state latitude in evidence collection (including the collection of physical evidence from the accused) and presentation, allows the accused to otherwise stand mute and put the state to its proof.

 

One of the difficulties in the literature on this subject is its theoretical nature, which reflects a triumph of abstraction over empathy. We do not believe that most ordinary people, actually confronted with the shock of finding themselves in the position of a criminal defendant, would have trouble understanding the refuge the right to silence provides. One of us served for years as a federal public defender and found that, apart from those who thought they could outsmart the system or the thoroughly angry and defiant, most clients were simply terrified—terrified at being caught up in the system, by the government’s enormous power, of interrogation and cross-examination, and most of all, terrified by the utter dehumanizing impersonality of it all. They were no longer Ed or Mary, but “the suspect,” “the accused, “the defendant,” or “the prisoner.” They faced the impersonalized overwhelming power of the jail, the courtroom, and the judge. The right to silence at the least protects the individual from having to subject himself or herself directly and personally to a face-to-face attack by the determined agents of the state.131 And Griffin’s rule recognizes that it is unseemly to empower the government to overtly bully the defendant in front of the jury by inviting an inference of guilt where there is only silence.

 

In the end, a robust right to silence, as an integral part of the cluster of rights comprising the “test the prosecution” model, has held its own in American constitutional jurisprudence despite its many energetic and thoughtful critics. This persistence may reflect a set of intuitions which, while not analytically tidy or entirely satisfying, are well-suited to the harsh realities of the modern criminal justice system. Griffin’s no-adverse-inference rule, by precluding the prosecution and judge from inviting the jury to employ the silence of the accused as evidence of his guilt,132 is consistent with that right. Its principle was well-established in the nation’s jurisprudence before Griffin, as forty-four states and the federal government had adopted it by that time.133 It is a rule which the Court in its last consideration characterized as “of proven utility,”134 as having found “wide acceptance in the legal culture,” and as having “become an essential feature of our legal tradition,”135 and which even its critics on the Court (with the lone exception of Justice Thomas) expressly declined to reconsider.136

 

 

 

In addition to our defense of the right to silence, we also offer a few comments on several particular points presented in Making Defendants Speak. First, its “zero-sum game” paradigm seems misplaced as a practical matter.137 For one thing, its proposed reforms are not necessarily interdependent. Making Defendants Speak makes a good case for reform of the standards governing admissibility of prior convictions to reduce the prejudice to the testifying defendant as a matter of evidence law.138 They could be implemented without overruling Griffin. Our concerns about overruling Griffin obtain whether the Rule 609(a)(1) standard is modified or not. Impeachment by prior conviction is of course a large practical disincentive to testifying, but it is not the only concern. Further, reform of the Rule 609(a)(1) standards obviously would do defendants without a prior criminal record no good at all. For them, even under Making Defendant Speak’s own paradigm, it’s all stick and no carrot. And Making Defendants Speak would perversely put the innocent, anxious, vulnerable defendant—without any prior convictions and who has nothing much to say except an unconvincing “I didn’t do it”—in the worst position of all.139 As for the proposed reform to the sentencing guidelines, its main effect may be to drive the consideration of perjury underground in the non-mandatory sentencing guidelines systems under Blakely v. Washington140 and United States v. Booker.141

 

Making Defendants Speak is more usefully regarded as a relatively weak form of “exchange abolitionism.”142 This term was coined in a rebuttal to advocates of what was to become the Criminal Justice and Public Order Act of 1994143 (the CJPOA) in England and Wales, which permitted adverse inferences to be drawn from the accused’s silence during police interrogations as well as at trial.144 Adoption of the CJPOA has inspired leading American critics of Griffin and Miranda, such as Alschuler.145 “Exchange abolitionism” would “argue for the abolition of the right to silence in exchange for other defendants’ rights.”146 That exchange ultimately occurred in reverse order in England and Wales when the CJPOA was proposed to rectify a perceived imbalance between prosecution and defense attributed to the Police and Criminal Evidence Act of 1984147 (PACE), which provided suspects ready access to free legal advice during police interrogations (among other important protections).148 Making Defendants Speak is abolitionism because its premises are aimed at undermining the right to silence, but it is relatively weak because it purports to reach only silence at trial, and offers an only modest if not illusory exchange.

 

The exchange proposed in Making Defendants Speak differs from the CJPOA model in several notable respects (in addition to not extending to pretrial interrogations). First, reforms to allow adverse inferences are advocated either on “evidential” or “incentivizing” grounds.149 “Evidential” grounds rest on an assumed logical relationship between the accused’s silence and the adverse inference: that silence during police questioning and at trial is indeed probative of guilt.150 “Incentivizing” grounds rest on an assumed empirical relationship between the inference and the accused’s likely behavior: that adverse inference will in fact encourage the accused to talk to police or to testify at trial.151 Making Defendants Speak frames its entire project around incentivizing grounds and does not address the implications and nuances of the evidential perspective. Yet, as Redmayne explains, incentivizing grounds are proper (quite apart from the normative debate about the right to silence itself) only if evidential relationships exist.152 Empirical support for incentivizing arguments is problematic;153 and the evidential relationships, especially with respect to a general adverse inference, can be complex and are not always well-founded.154

 

Second, the exchange in England and Wales mostly involved—indeed, was in part a reaction to—measures that strengthened the accused’s access to counsel during police interviews.155 Making Defendants Speak offers as one of the putative benefits of its proposed reform a weakening of the relationship between counsel and the accused, and the “exchange” right it proposes is in effect the “right” of self-incrimination.156 This strikes us as a remarkably poor exchange.

 

Third, the consequences of unqualified importation of the adverse inference to the United States would be far more dire than in England and Wales precisely because of the problem identified by Making Defendants Speak—the virtually automatic character impeachment by prior convictions.157 “To that extent,” Redmayne has observed, “Griffin is right.”158 Where Making Defendants Speak proposes only a relatively modest adjustment to the balancing test for admissibility of prior convictions, Redmayne would require such evidence to be disallowed altogether. He concluded that, if “testifying defendants [may] be impeached by previous convictions in situations where non-testifying defendants would not be, the use of silence as evidence is deeply problematic.”159

 

 

We also are skeptical of Making Defendants Speak’s argument that overruling Griffin is necessary, or even very useful, to increase the accuracy of criminal proceedings. If increased accuracy is the goal, other means more promising and less burdensome on rights are worth exploring.

 

Griffin’s scope is limited. It does not constrain government’s investigative capacity. It applies only to the small proportion (usually ten percent or fewer) of defendants who actually go to trial160 and the even smaller number (perhaps fewer than half of those) who do not testify.161 Its only prohibition is on the prosecutor’s argument or the judge’s instruction that the jury may use the silence of the accused as evidence of guilt and its only requirement is that the court give a cautionary instruction if requested.162 It does not prohibit the prosecutor from responding to defense counsel’s argument that the prosecution prevented defendant from telling his side of the story,163 or from challenging the credibility of defendants who do testify.164 It does apply at judicial sentencing,165 but not in prison disciplinary proceedings.166 It is subject to harmless error analysis167 and, according to one study, Griffin reversals are rare.168 Whether overruling Griffin will meaningfully increase the instance of defendant testimony is at best uncertain.169 And, for those defendants who continue to insist on remaining silent in a post-Griffin world, the marginal gain in accuracy of those verdicts depends on the evidential value of the adverse inference, which as mentioned above is probably not uniform across cases.170

 

We also suspect that anti-Griffin arguments have overstated the need for, and accuracy-promoting benefits of, defendants’ testimony. The dissenters in neither Griffin nor Mitchell complained about the loss of testimonial resources.171 There is little reason to believe that overruling Griffin will increase the rate of pretrial confessions, so the main incentivizing effect, if any, will likely be to increase the rate of perjurious testimony (especially if Making Defendants Speak’s recommendation to abolish perjury enhancements172 is adopted), which hardly seems an optimal way to promote accuracy.173 Overruling Griffin may also have the blunt-instrument effect of increasing the attribution of guilt to the silent defendant whether logically warranted or not. The rate of such attribution apparently is already high,174 as is the rate of misallocation of the burden of proof.175 The remedy here would seem to be more clearly stated jury instructions, not a dilution of Griffin’s protections.176

 

In our view, Making Defendants Speak would take matters in the wrong direction. A much more promising set of reforms would seek to reduce reliance on confessions and potentially problematic defense testimony at trial and increase the availability and validity of other forms of evidence—both scientific and nonscientific. One need not have succumbed to the “CSI Effect”177 to recognize that developments in forensic technologies over the past several decades already have begun to offer some forms of scientific evidence far more reliable than confession evidence.178 For others, to be sure, acceptable levels of scientific validity have yet to be achieved, and most forensic science is dependent on the integrity of the protocols in the laboratories that process it.179 But much greater gains in accuracy are likely to be had by directly addressing these problems, as recently recommended by the National Academies of Science,180 than by overruling Griffin. With respect to other, nonscientific evidence—e.g., eyewitness evidence—there already is a rich and growing literature regarding a number of investigative and legal reforms which, if implemented, would increase accuracy at trial.181

 

Finally, we reply briefly to Making Defendants Speak’s provocative suggestion that its rights-abolition proposal benefits defendants (the “participation, legitimacy, and equity” arguments182). Its proposal seeks to “punish” defendants for exercising their constitutional right to remain silent at trial by empowering prosecutors to crow to juries about it (as the prosecutor in Griffin did) and thereby to pressure defendants into enduring the hazards of testimony and cross-examination while deliberately seeking to distance them from their counsel.183 We fail to see how such results would enhance defendants’ perception of the legitimacy and fairness of the process. The restorative justice literature cited in Making Defendants Speak184—a mode of corrections that involves diversion from the adversary arena of court to arguably less dehumanizing, non-adversarial, non-punitive processes—does not support such a proposition.185 Nor does the Procedural Justice in Felony Cases study by Jonathan Casper and colleagues cited in Making Defendants Speak.186 That study included items tapping the dimensions of defendants’ sense of having the opportunity to express themselves in the process and interactions with counsel.187 Indeed, the Casper study failed to find a relationship between a sense of procedural justice and the mode of conviction (that is, whether convicted by guilty plea or by trial), but did find that “the amount of time spent with the lawyer is positively related to reports of procedural fairness.”188

 

Erica Hashimoto’s study of pro se felony defendants, also cited in Making Defendants Speak,189 plainly does not support the notion that pressuring defendants into distancing themselves from counsel is good for them.190 Hers is a carefully qualified defense of Faretta,191 not an assault on Gideon.192 To the contrary, she explicitly warns, “[t]hat this small, self-selected group who choose self-representation has met with adequate results does not mean that all felony defendants, including those who reject self-representation, would fare as well if forced to navigate the criminal justice system without the aid of counsel. Thus, the right to counsel remains as important as when the Court decided Gideon.”193 And, in our view, the solution to the very real problem of inadequate defense counsel and wealth-based disparities in representation is hardly the Harrison Bergeron-type approach of lowering the ceiling proposed by Making Defendants Speak194—decreasing defendants’ reliance on counsel by pressuring them to testify at trial. A more constructive approach is to look for ways to raise the floor.195

 

 

Making Defendants Speak complains that Griffin, like other Warren Court decisions in related areas, “lacked cogency and analytical rigor.”196 It argues that if Griffin were to be overruled so that defendants might be made to speak, we would also improve accuracy in the judicial fact-finding process, and enhance its legitimacy by encouraging defendants’ direct participation in their trials.197 Its more general project seems to be not only to overrule Griffin, but to dilute the defendant’s position in the adversary system and to empower the government by “allow[ing] prosecutors to argue adverse inferences from a defendant’s silence”198 and by “reduc[ing] dependence on lawyers.”199 To establish a doctrinal foundation for this result, the article asserts that a criminal trial is a “zero-sum,”200 “sorting process” game.201 Thus stated, it becomes merely a matter of adjusting the equation to bring about the desired outcome. Two sets of reforms, two sets of adjustments to the judicial equation, will make defendants speak: allow (even invite) inferences of guilt from silence to punish defendants who choose to remain silent; restrict the relevance of prior convictions as impeachment evidence and abolish obstruction-of-justice sentencing guidelines enhancements to reward defendants who choose to testify.

 

We have briefly noted why we believe Making Defendants Speak’s purported benefits are illusory, but have concentrated mainly on explaining why we do not share its apparent antipathy to the right to silence at trial. Griffin, like other opinions by Justice Douglas late in his career, is vulnerable to criticism as poor judicial craftsmanship,202 but we believe its principle is sound. To be sure, that principle did not enjoy much currency among the founders and it has been subject to continued academic criticism. Nevertheless, the no-adverse-inference rule and the right to silence at trial it helps to effectuate have come to be an integral part of an interrelated set of protections, arising within an increasingly complex and intrusive criminal justice system. Those protections accord a modicum of dignity we believe most persons deserve when confronted by an inhuman and powerful adversary in a dehumanizing process. Those protections recognize the central role of counsel as “a medium between the accused and the power of the State.”203 Today’s “test the prosecution,” anti-inquisitorial model of criminal justice has developed within an ever-burgeoning substantive criminal law and law enforcement system. The particular rights at issue here—the right to silence at trial and Griffin’s more specific prohibition on the evidentiary use of its non-exercise against the accused—is by now a well-established part of the cluster of rights that define the model. That cluster may not look like it did in the founders’ era, but then neither does much that matters about the practical, day-to-day face of our criminal law and criminal justice system.204

 

Cite As: Donald P. Judges & Stephen J. Cribari, Speaking of Silence: A Response to Making Defendants Speak, 94 Minn. L. Rev. Headnotes 11 (2009), http://www.minnesotalawreview.org/sites/default/files/Judges_Cribari_Speaking_of_Silence.pdf