An Economic Theory of the Fifth Amendment

Hugo Mialon ()

RAND Journal of Economics, 2005, vol. 36, issue 4, 833-848

Abstract: The Fifth Amendment's due process clause requires the prosecution to share evidence with the defense, and the right to silence that it guarantees blocks the jury from drawing an adverse inference from a 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 improve welfare only if juries discriminate unduly against defendants. With the right to silence, mandatory disclosure always increases welfare. The most efficient mechanism analyzed is either mandatory disclosure alone or mandatory disclosure combined with the right to silence.

Date: 2005
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