Adverse Inferences from Silence

This Report, the eighth in the Truth in Criminal Justice series, assesses the rules relating to the evidentiary consideration of the defendant’s silence. Its general conclusion is that the existing restrictive rules in this area are unjustified impediments to the search for truth. The notion that the fifth amendment’s prohibition of compelling a person in a criminal case to be a witness against himself bars drawing adverse inferences from the defendant’s silence is not well-founded. In practical effect, these rules impede the conviction of the guilty by barring consideration of an aspect of the defendant’s conduct-his failure to respond to the evidence and accusations against him-that is rationally relevant to the determination of guilt and innocence. They also disserve the search for truth by artificially shielding the defendant from the normal incentives he would feel to testify, thereby making it less likely that he will be available for questioning. There is no reason to believe that these restrictions have any overall value in protecting the innocent from unjust conviction; they may well have the opposite effect.