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An Economic Theory of the Fifth Amendment

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  • Hugo M. Mialon

    (Emory University)

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.

Suggested Citation

  • Hugo M. Mialon, 2005. "An Economic Theory of the Fifth Amendment," RAND Journal of Economics, The RAND Corporation, vol. 36(4), pages 833-848, Winter.
    • Handle: RePEc:rje:randje:v:36:y:2005:4:p:833-848
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    Citations

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    Cited by:

    1. Che, Yeon-Koo & Severinov, Sergei, 2015. "Legal Advice and Evidence with Bayesian and non-Bayesian Adjudicators," Microeconomics.ca working papers sergei_severinov-2015-24, Vancouver School of Economics, revised 31 Dec 2015.
    2. Dhammika Dharmapala & Thomas J. Miceli, 2013. "Search, seizure and false (?) arrest: an analysis of fourth amendment remedies when police can plant evidence," Chapters, in: Thomas J. Miceli & Matthew J. Baker (ed.), Research Handbook on Economic Models of Law, chapter 11, pages 208-234, Edward Elgar Publishing.
    3. Turkay, Evsen, 2011. "Evidence disclosure and severity of punishments," MPRA Paper 31504, University Library of Munich, Germany.
    4. Che, Yeon-Koo & Severinov, Sergei, 2007. "Lawyer Advising in Evidence Disclosure," MPRA Paper 6101, University Library of Munich, Germany.
    5. Mialon, Hugo M. & Mialon, Sue H. & Stinchcombe, Maxwell B., 2012. "Torture in counterterrorism: Agency incentives and slippery slopes," Journal of Public Economics, Elsevier, vol. 96(1), pages 33-41.
    6. Shmuel Leshem, 2010. "The benefits of a right to silence for the innocent," RAND Journal of Economics, RAND Corporation, vol. 41(2), pages 398-416, June.
    7. Lundberg, Alexander & Mungan, Murat, 2022. "The effect of evidentiary rules on conviction rates," Journal of Economic Behavior & Organization, Elsevier, vol. 203(C), pages 563-576.
    8. Konstantinos Ioannidis & Theo Offerman & Randolph Sloof, 2022. "Lie Detection: A Strategic Analysis of the Verifiability Approach," American Law and Economics Review, American Law and Economics Association, vol. 24(2), pages 659-705.
    9. Itai Ater & Yehonatan Givati & Oren Rigbi, 2017. "The Economics of Rights: Does the Right to Counsel Increase Crime?," American Economic Journal: Economic Policy, American Economic Association, vol. 9(2), pages 1-27, May.
    10. repec:ema:worpap:2021-02_v2 is not listed on IDEAS
    11. Yeon-Koo Che & Sergei Severinov, 2017. "Disclosure and Legal Advice," American Economic Journal: Microeconomics, American Economic Association, vol. 9(2), pages 188-225, May.

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