Publication Date


Document Type



The syllogism goes as follows: major premise - Innocent people proclaim their innocence in response to an accusation; minor premise - Defendant failed to respond to an officer's accusation that he killed his wife; conclusion - Defendant is guilty of killing his wife. This syllogism is the basis upon which courts and lawmakers allow a defendant's silence to be admitted into evidence as proof of guilt. They reason that it is quite appropriate for jurors to infer that innocent people would proclaim their innocence and, therefore, a defendant's decision not to speak constitutes evidence of his or her guilt.

This Article will challenge the assumptions upon which the syllogism rests. It will ultimately demonstrate that the major premise, which argues that the innocent speak while the guilty remain silent, is often untrue, especially when the person leveling the accusation is a member of law enforcement. Research in the areas of sociology, psychology, and communications reveals that a person's silence in relation to law enforcement officers can reflect many things other than guilt or innocence. Part II of this Article will discuss the traditional evidentiary uses of silence. Part III will discuss the manner in which the Fifth Amendment privilege and the reading of Miranda warnings affect the government's ability to argue that a defendant's silence is evidence of guilt or lack of credibility. Part Ill will also describe court interpretations regarding the probative value of silence. Part IV will explore what silence means outside the legal context. This section will review the possible meanings of silence as examined by scholars in other disciplines. Part V will propose a new addition to the Federal Rules of Evidence that will provide greater limits on the admissibility of evidence of a defendant's failure to communicate with law enforcement officers. Part VI will conclude that basic evidentiary standards and public policy considerations call for limitations on the use of a criminal defendant's silence.

Publication Title

University of Louisville Law Review





Included in

Law Commons