The Right to Silence Protects Mental Control


Dov FoxFollow

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The Fifth Amendment protects criminal suspects from being forced to provide "testimonial" declarations like verbal or behavioral responses. But that privilege against self-incrimination allows police to take and use "physical" evidence, however, like emails, photographs, or medical records. This distinction between testimonial and physical evidence has been defended on the ground that it helps to preserve the integrity of statements by innocent suspects, or that it excuses an impossible choice among indictment, contempt, and perjury.

But these dominant rationales fail to explain a common intuition that police may not extract incriminating thoughts from a suspect’s head against his will. Brain imaging, by packaging testimonial memories in the physical form of brain waves or blood flows exposes the false dichotomy that this distinction presumes between the mental phenomena of the mind and the brain chemistry of the body. I reconceive the right to silence as protecting person’s control over his mental life and use a range of hard cases to defend the explanatory and normative force of this account.

Publication Info

Akron Law Review, Vol. 42 p. 763, 2009