Like the Fourth Amendment ban on unreasonable searches and seizures, the privilege against self-incrimination stands as a barrier to the government's acquisition of information about criminal activities. The moral analogue in private relations to the Fourth Amendment right is quite straightforward. One person should not rummage about the private spaces of another seeking signs of bad behavior unless he has very powerful reasons. The Fourth Amendment similarly limits the government, generally permitting searches only upon probable cause. The private moral analogue to the Fifth Amendment's right of silence is harder to identify, its analysis is more complex and the judgments of right and wrong are more dubious. When may one person properly ask another if he has done something wrong; what are the responsibilities of the person asked when such questions are put; and what may the questioner assume if no helpful response is forthcoming? Uncertainty about these matters may help explain the profound disagreements over the right to silence, considered by some a pernicious impediment to the discovery of truth and by others "one of the great landmarks in man's struggle to make himself civilized."
My discussion is based on the belief that exploration of the ordinary morality that governs questioning of those who may have done something wrong will aid us to understand what relations are appropriate between an inquiring state and suspected individuals in the criminal process, and may also influence our views about how broadly the existing constitutional right should be construed. I am not among those who believe -that clarification of fundamentals often produces blinding changes of view, so I expect some strong disagreement with my evaluation of private situations, the manner in which I link these to. relations between the state and individuals, and my views about constitutional interpretation. I hope, however, that the process of working through the issues I raise will illuminate the reader's own perspectives on the right to silence and on the broader concerns about a citizen's relation to his government which that right raises:
My own analysis eventuates in the conclusion that the basic core of the right to silence is morally justified and deserves constitutional protection. I suggest that the Supreme Court, however, has interpreted the right too expansively in its general refusal to permit inferences from failures to speak and in its constraints on dismissal of government employees who refuse to answer questions about their performance of duty. I also suggest that the Court has not yet gone far enough in protecting suspects from the pressures and manipulative strategies of informal interrogation.
Constitutional Law | First Amendment | Law
Silence as a Moral and Constitutional Right,
Wm. & Mary L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3853