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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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    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: Research Handbook on Economic Models of Law, chapter 11, pages 208-234 Edward Elgar Publishing.
    3. Hugo Mialon & Sue Mialon, 2008. "The Economics of Search Warrants," Emory Economics 0810, Department of Economics, Emory University (Atlanta).
    4. repec:aea:aejpol:v:9:y:2017:i:2:p:1-27 is not listed on IDEAS
    5. repec:aea:aejmic:v:9:y:2017:i:2:p:188-225 is not listed on IDEAS

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