Publication Date

Spring 1979

Document Type



Judging how heavily the state may burden the decision to exercise or forego the fifth amendment privilege against self-incrimination is a concededly problematic undertaking. Nevertheless, the formulation of a standard is essential to ensure principled decision making. Unfortunately, however, the Supreme Court has thus far avoided the task. The decisions from the Warren era suggest in very broad language that any burden on the exercise of the right to remain silent is forbidden, while more recent rulings have barred only those penalties automatically imposed for assertions of the privilege. Neither extreme, however, represents a satisfactory resolution of the conflicting interests involved. Rather, as argued below, the fifth amendment should stand as a presumptive barrier against the imposition of sanctions on those who claim their right to silence, allowing adverse consequences only when the state is pursuing a substantial state interest which it cannot achieve in alternative ways.

Publication Title

The Journal of Criminal Law & Criminology