You Have the Right to Remain Innocent

by James J. Duane

conservative majority of the court now agrees that when a criminal suspect does decide to remain silent, that fact logically supports the conclusion that the suspect must be guilty. Justice Scalia has put the point this way: “If I ask my son whether he saw a movie I had forbidden him to watch, and he remains silent, the import of his silence is clear.”7 Justice Scalia’s assessment of his son’s silence makes perfect sense, but his analogy was nonsense. With all due respect, he simply did not understand the reasons why young men interrogated by their fathers do not face the same perils encountered by innocent suspects who are questioned by a police officer they do not know, as this book has explained. His mistaken intuition is also plainly refuted by a study of innocent prisoners who were convicted of crimes they didn’t commit only to be cleared by DNA evidence, which found that 39 percent of those innocent defendants had decided not to testify at the trial where they were falsely convicted.8 It is absolutely false to suggest that the silence of the accused is important evidence of guilt.

I have no idea how Duane can so admire Scalia, yet recognize the danger and damage his rulings have had on the 5th Amendment.