The right to silence helps the innocent: A game-theoretic analysis of the fifth amendment privilege

This Article develops a consequentialist game-theoretic perspective for understanding the right to silence. Professors Seidmann and Stein reveal that the conventional perception of the right to silence - that it impedes the search for truth and thus helps only criminals - is mistaken. Professors Seidmann and Stein demonstrate that the right to silence can help triers of fact to distinguish between innocent and guilty suspects and defendants. They argue that a guilty suspect's self-interested response to questioning can impose externalities, in the form of wrongful conviction, on innocent suspects and defendants who tell the truth but cannot corroborate their responses. Absent the right to silence, guilty suspects and defendants would make false exculpatory statements if they believed that their lies were unlikely to be exposed. Aware of these incentives, triers of fact would rationally discount the probative value of uncorroborated exculpatory statements at the expense of innocent defendants who could not corroborate their true, exculpatory statements. Because the right to silence is available, innocent defendants still tell the truth while guilty defendants may rationally exercise the right. Thus, guilty defendants do not pool with innocent defendants by lying, and as a result, triers of fact do not wrongfully convict innocent defendants. Professors Seidmann and Stein contend that the existing empirical data support their game-theoretic analysis. Furthermore, they argue that this anti-pooling rationale for the right to silence justifies and coherently explains Fifth Amendment jurisprudence. "[A]t one exquisitely ironic point in the narrative he is unable to publish a true story about a Russian agent operating in the capital because a false story to the same effect has already been circulated and then denied."¹.