An Economic Theory of the Fifth Amendment

The Fifth Amendment's due process clause requires the prosecution to share evidence with the defense, and its right to silence blocks the jury from drawing an adverse inference from the defendant's silence during trial. I examine the effect of the right to silence and the disclosure requirement on conviction rates and social welfare in an economic model of criminal trials. Many policy-relevant results emerge. The right to silence can only improve welfare if juries discriminate unduly against defendants. With the right to silence, mandatory disclosure always increases welfare. Mandatory disclosure always reduces the welfare-efficiency of the right to silence. The right to silence combined with mandatory disclosure is more likely to increase welfare than is the right to silence alone. The most efficient mechanism is either mandatory disclosure alone or mandatory disclosure combined with the right to silence