June 2012, Volume 98, Issue 4
The Original Public Meaning Of The Fifth Amendment Applied To Substantive, Prosecutorial Use Of Pre-Miranda Warning Silence
by Andrew Bentz
98 Va. L. Rev. 897 (2012)
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This Note applies the original public meaning of the Fifth Amendment’s self-incrimination clause to silence maintained before Miranda warnings are given. After beginning with a brief defense of originalism applied to pre-Miranda silence, the Note shows how the history of the right, the understanding at the founding, and the underlying justification of individual autonomy support proscribing the use of pre-Miranda silence as evidence of guilt. It then shows that the original understanding fits comfortably within current Supreme Court precedent. Finally, the Note responds to some counterarguments
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