Field Notes

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The right to remain silent

a new answer to an old question

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A three-page practitioner article by James J. Duane, published in Criminal Justice (American Bar Association, Volume 25, Number 2, Summer 2010) and posted to SSRN as abstract 1998119. The local PDF is the ABA-licensed reprint; Duane’s later lecture cites this SSRN identifier as his companion legal source.

The article argues that the traditional courtroom script for invoking the Fifth Amendment — “I decline to answer on the ground that my answer may tend to incriminate me,” a formula traced to an 1896 case, Brown v. Walker — actively damages the witness in front of a jury, because ordinary jurors hear the word “incriminate” as an admission of guilt. Duane traces this danger through several rulings: silence after Miranda warnings is inadmissible at trial under Miranda v. Arizona and Doyle v. Ohio, but that protection can erode. Portuondo v. Agard signaled the Supreme Court’s own doubts about Doyle’s durability; silence is admissible if police can claim they never read Miranda warnings at all, under Fletcher v. Weir; and a Fifth Amendment assertion is always admissible in a civil proceeding, under Mitchell v. United States. He cites Ohio v. Reiner for the Supreme Court’s position that the privilege protects innocent people too, since a truthful answer can still “provide the government with incriminating evidence from the speaker’s own mouth,” and Ullmann v. United States for the Court’s complaint that too many people wrongly treat the privilege as “a shelter for wrongdoers.”

His proposed fix is a replacement script that invokes the privilege without using the word “incriminate”: a witness should say they decline to answer “on the basis of the Fifth Amendment, which — according to the United States Supreme Court — protects everyone, even innocent people,” from the risk that a truthful answer could create a misleading appearance of guilt. He argues this framing reverses the courtroom dynamic, leaving the witness sounding principled rather than evasive.

This short, single-topic article is reliable evidence of what a licensed law professor argued in a peer-reviewed-adjacent bar publication. Why you shouldn’t talk to the police checked the underlying case law this article warns about: Doyle v. Ohio has not been overruled, but Salinas v. Texas (2013) confirmed the risk this article anticipated, and Ohio v. Reiner is correctly cited for its conclusion but arose in the narrower context of a prosecution witness’s immunity grant, not a general rule for any speaker. The article’s proposed replacement wording remains reasonable phrasing advice within that narrower and more contested legal landscape.

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