Silence, confessions, and the new accuracy imperative

Silence is both overpriced and underrated. This Article assesses the status of silence in light of renewed attention to reliability in criminal procedure. First, it considers the meaning of silence, both outside of the criminal justice process and within it. The Article then describes how silence can safeguard the context of confessions by making space for suspects to choose or reject engagement while shielding the content of statements from government manipulation. This account seeks to advance the discussion about protecting silence beyond the debate as to whether it advantages the innocent or the guilty. Empirical developments concerning wrongful convictions establish that factually innocent defendants do make false confessions, that the government often co-authors those statements, and that errors occur because the cost to defendants of staying silent is too high. The Article concludes by evaluating both exclusionary rules and law enforcement regulation that could better protect silence and, in doing so, enhance accuracy.

Duke Scholars

Author Lisa Kern Griffin School of Law